Gallo v The Honourable Justice Dawson

[1990] HCATrans 129

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M59 of 1989

B e t w e e n -

KATHLEEN GALLO

Applicant/Plaintiff

and

THE HONOURABLE JUSTICE DAWSON

Respondent/Defendant

Application for an extension

of time

McHUGH J

(In Chambers)

Gallo(4)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 8 JUNE 1990, AT 9.00 AM

Copyright in the High Court of Australia

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MRS K. GALLO:  If Your Honour pleases, I appear in person.

MR C.M. MAXWELL:  ttay it please the Court, I appear for the

defendant. (instructed by the Australian Government

Solicitor)

MR MAXWELL:  Your Honour, I took the liberty of suggesting

to Mrs Gallo that it might assist the Court if I

explained the procedural background, not in any

great length, and then she would wish to address

Your Honour, and then I would make my submission

in opposition to her summons.

HIS HONOUR:  I have examined the file in the matter in so far

as there was an action commenced and it was struck

out. But any way, you go ahead.

MR MAXWELL:  Your Honour, I do not wish to go into any

unnecessary detail. I do have for Your Honour's

assistance a set of cases to one of which I would

need to refer in this introductory submission; that

is the judgment of His Honour Justice Wilson in

striking out the writ in the first place.

As Your Honour will have seen, the essence of

Mrs Gallo's claim was that the defendant had failed

in his duty as a Justice of the Court and she

referred specifically to a hearing on 24 May 1985

being the hearing of a special leave application in

this Court and at tab 5 in the volume I have handed

up to Your Honour is the - - -

HIS HONOUR:	I am afraid there is no tab.
MR MAXWELL:	I am sorry, Your Honour. That is an oversight.

There is a copy of the reported decision in GALLO V

DAWSON.

HIS HONOUR:	Where is it in relation to RAJSKI?
MR MAXWELL:	I am sorry, Your Honour.
HIS HONOUR:	I have a copy of the Australian Law Journal Report.
MR MAXWELL:	That is the one that I had in there. Your Honour

will see that Justice Wilson referred at the outset

to the caution the Court would exercise in relation

to an application for summary dismissal but His Honour

expressed the view that it was a plain case, the law

as to the absolute immunity of a judge for acts done
by him in the performance of his judicial duty was

of very long standing and universal acceptance, and

further, His Honour added, at page 122 in the second

column, that there was "no justification whatever

for the plaintiff's apprehension of bias" on the

material then before the Court.

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Gallo(4)

Mrs Gallo had a right of appeal, that being a

final judgment- - -

McHUGH J: Well, that is a question as far as I am concerned.

TAMPIAN V ANDERSON in the Privy Council held that this

was an interlocutory judgment, this type of order,

and I appreciate what was said about that case in

PORT OF MELBOURNE AUTHORITY V ANSHUN PTY LIMITED but

what do you say about this issue as to whether or not

this was a final judgment?

MR MAXWELL: Well, in my respectful submission, Your Honour, it

was a finding that there was a complete defence to

the action on the basis of judicial immunity that

finally disposed of the rights of the parties to the

action. The action was dismissed and the defendant's opposition to this application accepts that an appeal

would have lain from that decision -

HIS HONOUR:  Could I ask you about this: in his reasons the learned Justice said that the action:

should be permanently stayed in accordance

with O 63,r 1 or dismissed in the exercise

of the inherent power of the Court.

What did he ultimately do? Did he dismiss it under the inherent power - that seems to be what he is

doing in the second-last sentence of his judgment?

MR MAXWELL:  Yes, Your Honour, that is as I recall the order of the Court, that:

The action is dismissed with costs.

And that finally terminated Mrs Gallo's action and

it is submitted that that would allow it to be
characterized as a final judgment; true, made on an

interlocutory application but the nature of the application and the order being that as between

plaintiff and defendant her action was dismissed and

the defendant had succeeded.

HIS HONOUR:  Yes.

MR MAXWELL: Proceeding on that footing, the rules require that

any notice of appeal be filed within 21 days under

Order 70 rule 3.	The time expired in November 1988
accordingly.	No such notice was given, and it then

became necessary for Mrs Gallo to apply to extend

time and she has done that under Order 60 rule 6- - -

HIS HONOUR:	Mrs Gallo seems to have filed a notice of motion applying for leave to appeal and then she issued a
fresh summons in February 1990.

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Gallo(4)

MR MAXWELL:  Which was the summons which came on in this Court

before Justice Toohey seeking an extension of the
time to file a notice of appeal and it is in response

to that summons that I first appeared for the

defendant on 9 March. His Honour struck out that

summons, Mrs Gallo not having appeared, and she has

issued a fresh surrnnons which is dated 19 March 1990

making the same application for an enlargement of

time and for a stay of orders made on 19 October and

9 March.

There is no additional affidavit material that

has been served on the defendant. There is a single

affidavit which the Court would have, sworn

16 February 1990, explaining the circumstances of the

delay, purporting to explain them, and the matter

comes on before Your Honour this morning by way of

the fresh surrnnons.

Save to say that the defendant opposes the

summons, I will reserve my submissions until Mrs Gallo

has addressed Your Honour.

HIS HONOUR:  Yes. I will hear from you, Mrs Gallo.

MRS GALLO:  If Your Honour pleases, this application is a very

important application for me as far as the matter

is concerned. As I understood, Your Honour, my

action was struck out on the ground that the irrnnunity
of a Justice cannot be challenged in court. It was

not the reason because it was not an action which

could not or should not be taken up, but simply

on the old rules of the previous action whereby it

was decided by Lord Denning, I think it was, who made the decision a long time ago that a justice cannot be made responsible for - specially financially

responsible for an action similar to mine.

Even so, Your Honour, this is a very longstanding

ruling.	So many things change today in everyday life
that probably this rule should be changed also and	taking a different view whereby, Your Honour, this
ruling protects justices from making probably the
wrong decision, or by influence or outside pressure
making decision which not quite to the justice of the Illcltter but rather by what influence is exerted. Now, in
this case, Your Honour, it is important that a
justice could be above any influence whatsoever. Is
that possible to suppose, that if a justice has a
wrong briefing of one party, which briefing is not correct and result any chance of objecting to it accepted by the justice and makes a decision
according to that, that this is an unbiased decision.
I would think, Your Honour, and humbly put my request
and opinion before the Court, that it is impossible
even to suggest.

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Gallo(4)

Because whoever enters the court more or less

..... legal profession is having a certain introduction.

Your Honour, unfortunately I came along. Nobody could

tell anything good about me, Your Honour. What was

on file, due to circumstances, did not reflect the

truth and this is why I am still here after 20 years

of trying to bring through the fact that what

happened during those years, Your Honour, it was

wrongly put before the Court.

In the beginning I had legal representation

right through, up till it was obvious that the legal
representation rather harmed my case than it would

put the true facts before the Court. So I had no

other choice, Your Honour, than try to do it myself.

Now, this is a very difficult undertaking from a

person who, not because I could not but I was not

given a chance to be able to bring my knowledge to a

certain level that I could stand before Your Honour

with references going back to law books and to be a

proper representation before the Court.

I applied to be admitted to the faculty of law

in 1957 first time.	I had a very good school record
from my time, Your Honour.	I had ..... what I can

prove in my documents and I finished my schooling in

Hungary. But unfortunately I was not given a place

so my law studies could not - I had no help,

Your Honour, no guidance to say that, look, you read

this or you do that. Whatever I learned during the

years it was more or less unfortunate result of my

cases, because I can only argue after when I know

what is put before me and I study it, Your Honour,

and go after and look up the cases that what is

actually the way to argue over it at all.

This was the very case before I was before

His Honour Justice Wilson. The defence which was

put before me, it was a new subject what I was unable

to debate.	I did not have my background for it,
Your Honour, to debate it.	I did not have my

knowledge for it to debate it. I had to listen and

write what His Honour- - -

HIS HONOUR:  Are you putting these things to me as a reason why

you should be allowed to appeal out of time?

MRS GALLO:  No, Your Honour, I have tried to explain my

unfortunate situation.

HIS HONOUR:	Mrs Gallo, this is an application to extend the time for filing your notice of appeal and it will
be put against you, no doubt, by Mr Maxwell that it
is over a year since the date of Justice Wilson's
judgment and you should have appealed within 21 days and there is no reason why the ordinary rule should
not apply to you, namely that if you did not appeal

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Gallo(4)

within 21 days, that is the end of the matter. Now,

why should you be given the privilege of appealing

almost over a year after the judgment was delivered

by Justice Wilson?

MRS GALLO:  Your Honour, mainly by the reason that I was not

decided over the fact if I would have a chance to

bring an appeal against that decision. As I put in

my affidavit, Your Honour, that took a long many

running after and searching and researching and

deciding over the matter, that the only way, Your Honour,

if I am not able to bring the appeal and the case is

closed, a lifetime of injustice is covered up. But

that is not proper, Your Honour. Justice should gain

victory at the end by all means.

I believed in justice. That was the only reason why I came to the Court ...... probably I would

have to choose a different way to get through and

make my word heard but I believe that the courts are

to give justice and to make justice.

HIS HONOUR:  Mrs Gallo, they have to give justice according to

law, and that means in accordance with rules.

MRS GALLO:  Yes, but you see, Your Honour, the rules are made

by the Justices of the Court and according to

Order 60 rule 6(2) an application can be made

and the Justice has the power and authority to give

leave regardless that the application is made at a

later date.

HIS HONOUR:	There is no doubt there is the power there; the question is whether or not this is a proper case. Now, one thing you have to deal with is this question
of the more than one year's delay and you have
explained to me why that should not be a bar. The
other factor, though, that you will have to consider is whether your appeal has any prospects of
success because it would be futile for me to grant you leave to appeal if I formed the same view of the
matter as Justice Wilson did.

Now, this is not the appeal, but could you tell

me very shortly what arguments you would put to

suggest that Justice Wilson's judgment is arguably

wrong.

MRS GALLO:  I would argue the point from the point, really, that the

decision to struck out my writ was based on the immunity of a Justice not to be responsible for

financial damages. Your Honour, I intended to amend

my statement - my endorsement to a statement of claim
which could not be actuated because it was struck out

before ever it came to it. As I put in my affidavit,

I intend to change my claim.

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Gallo(4)

HIS HONOUR:  You want to set aside the order dismissing your

special leave application, is that - - -

:MRS GALLO:  Not the special leave application. I will not need

any special leave application if - - -

HIS HONOUR:	No, but in paragraph 9 of your affidavit you said that your intention was to amend your claim by
substituting for the claim for damages to set aside the order made on 24 May 1985 in the special leave
application.
:MRS GALLO:	1984, yes.

HIS HONOUR: Justice Dawson would not be the proper party

there. You would have to bring an action against

the Attorney-General to get that order revoked.

:MRS GALLO:  Yes, Your Honour, but the decision was made under

the influence of His Honour Mr Justice Dawson. If

it is proved that this matter was a bias with an

inducement by him to the Court, I would have a chance

to be able to bring back the case, but I have been

advised by the Registry that this is a final forum

where I can apply to reopen or take further the case

which was refused with that special leave application.

Your Honour, I have nothing left in my hand to be

able to proceed but to be able to do it from a
different point of view by proving that it would not

be the same judgment if it would not have been

influenced on that very day. And this is why it would

be important, Your Honour, the financial satisfaction

which I put in my writ would be changed without any

difficulty, but even if it is a chance given or to

rehear this hearing which was struck out - to rehear

the application for the special leave, that would be

quite satisfactory as far as I am concerned.

Since the judgment of His Honour Mr Justice Wilson

was based exclusively on that point, because what he

put in his judgment that ..... not area which is before

the Court, he cannot say that it was a biased

decision, but I can follow it up and properly set out

why I do think, and I believe, that it was biased, that

would - - -

HIS HONOUR:  You see, there is no material before me that was

before Justice Wilson.	Was there material before
Justice Wilson?

MRS GALLO:  I do not know what was on the file, Your Honour. I

· filed all my papers according to the rules.

HIS HONOUR: In the action before Justice Wilson

:MRS GALLO: It was only the statement and endorsement.

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HIS HONOUR: Just the- - -

MRS GALLO: Just the endorsement, Your Honour. It was no

submission as far as what intend to be put into

the amended statement of claim.

HIS HONOUR:	I understand, yes, I follow.
MRS GALLO:	This way it would - the justice's irrnnunity rule

apply and taken out from the action altogether and

would rely solely on the fact that it was a decision-

HIS HONOUR:  Let me understand your case. You tell me if I

have understood it properly. You say you should be

given the right to appeal out of time because, first

of all, the delay was caused by the need for you to

research the matter by reason of the fact that you

are not a lawyer.

MRS GALLO: That is right, Your Honour.

HIS HONOUR:  And secondly, you say that you want the Full Court

of the High Court to re-examine the question of

justices' irrnnunity, is that - - -

MRS GALLO:  No, not the justices' irrnnunity, Your Honour. The

justices' irrnnunity would be altogether put aside

as a question because the claim is changed. See,

with the amended statement of claim the irrnnunity
question would not come up at all because it was
taken out from the claim part of my writ where
instead of financial satisfaction I would ask for

the rehearing of the special leave application in

satisfaction -

HIS HONOUR:  I understand that. Is there anything further that

you want to put in support of your application?

MRS GALLO:  Your Honour, also I meant to mention I find a rather

interesting defect in the appearance of the defendant.

I have different signature of Mr Barker and if the

Court pleases, I like to submit that to see if I am

right or if I am wrong. Also, Your Honour, there are

other defects in the notice of appearance. The

address in both cases are incorrect. May I submit

those papers, Your Honour?

HIS HONOUR:  Yes. You had better show them to Mr Maxwell first.

MRS GALLO:	If Your Honour would have a look at the signatures.
HIS HONOUR:	Yes.

MRS GALLO: Well, in my humble opinion, Your Honour, they do not

look alike at all, do they?

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HIS HONOUR:  It is not for me to judge at the moment, but- - -

MRS GALLO: Is it correct or is it - - -

HIS HONOUR: This does not seem to have anything to do with your

present application. This is an application to

extend the time for appealing against the judgment of

Justice Wilson and this does not seem to have

anything to do with that, that point, but I appreciate

the point you are putting, that the signatures do not

look alike. But that does not go to the issues with

which you are dealing, Mrs Gallo.

MRS GALLO: Probably it is, Your Honour, from the point that I

am asking for extension of time to file an appeal.	I
intend to put in my appeal as a subsection that it
seemed to be something out of place because my
signature is more or less it is little differences,
the characteristics are the same.	But anybody who

has a look at that signature it hardly can find that

they even resemble each other.

HIS HONOUR:  Yes; but it does not seem to me at the moment to

have any bearing on this present application.

MRS GALLO:  Your Honour, those matters cannot be brought before

the Court without having my extension of time to

make notice of appeal.

HIS HONOUR:  Yes, I understand that. Now, is there anything

further that you want to put in support of this

application?

MRS GALLO:  Your Honour, I think the only one more matter that

could be mentioned, the duty of the Court to give a

chance to people to prove they are right. By the

procedure I had in my action it was no chance,

Your Honour. It was without - I could not even bring

what I tried to say because by another reason and

ground my action was wiped out. It was never before the Court, if it was any reason or any cause to make

an action for bias or not because it was decided

that the Justice cannot be made responsible
financially.	So that does not prove if I was right

or if I was wrong; it simply struck it out from a

different reason. Now, Your Honour, if it would be

possible, it would be just and fair if it can be

proved that the main reason of the writ is really

right or wrong or fair or unfair or unjust as far

as it was brought.

HIS HONOUR:  I think I understand the case that you put,

Mrs Gallo.

MRS GALLO:  That you very much, Your Honour.

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HIS HONOUR:  Could you just briefly summarize your submissions,

for me, Mr Maxwell?

MR MAXWELL:  Yes, Your Honour. They are these: the consideration

of the merits which is a matter for the Court on
application of this kind could lead, it is submitted,

to only one result, that is that the appeal has no

prospect of success whatever. The point could hardly

be clearer nor more widely established but that an

action for damages for bias against a judge must fail.

HIS HONOUR:  I think Mrs Gallo's point is that she wanted to

amend the statement of claim. She does not press

the action for damages; she seeks relief in respect

of the special leave application.

MR MAXWELL:	Yes, Your Honour, and it is submitted in respect of that that that is an entirely different action.
This was an action against a defendant couched in a
very particular way. The order from which an appeal
is sought to be brought was an order dismissing that
action. An action brought in respect of the special
leave decision of the bench would be quite different - - -

HIS HONOUR:  Yes, I understand that. What do you say about the

extension of time otherwise?

J:.1R MAXWELL: Otherwise, the delay is not, in my submission,

explained. Mrs Gallo's material evidences a degree

of familiarity with the process; a capacity to

inform herself about both rhe law and the procedure and

delay since October 1988 is entirely excessive. For all those

reasons, it is submitted that this application should

be dismissed. For completeness, I should confirm to

Your Honour that the original order was an order dismissing the action and it is submitted that this

application should be dismissed. If Your Honour pleases.

HIS HONOUR:  Yes, thank you, Mr Maxwell. Do you want to say

anything in reply?

MRS GALLO: Yes, Your Honour. If I may I would like to point

out only one matter. In the affidavit of

Mr .. . .. which is on the file, Your Honour, he

mentioned and contradicted my submission that it was

a biased decision when His Honour Mr Justice Dawson,

after one and a half years gave leave to the Attorney-

General's Department to make an application arguing

the validity of my proceeding and they have been

granted the leave, Your Honour. So taking into

consideration that I am only one year behind, would

that not be fair that I am measured with the same

grace or same allowance as they have been at that time.

That is all that I want to say.

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HIS HONOUR:  Thank you very much, Mrs Gallo.

I will reserve my decision in this matter.

Mrs Gallo and Mr Maxwell, I probably will give

judgment in Sydney in this matter. Neither of you

will have to attend, of course. Judgment will be

probably handed down in Sydney in the next couple

of weeks or so.

Thank you very much for your assistance, both

of you.

AT 9.33 AM THE MATTER WAS ADJOURNED SINE DIE

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