Ghabour v Royal Prince Alfred Hospital

[1998] HCATrans 29

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S179 of 1996

B e t w e e n -

ALBERT GHABOUR

Applicant

and

ROYAL PRINCE ALFRED HOSPITAL

First Respondent

DR H.B.P. HARVEY

Second Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 1998, AT 12.41 PM

Copyright in the High Court of Australia

MR H.G. SHORE:   May it please the Court, I appear for the first respondent.  (instructed by William K. Chambers)

MR P.L.G. BRERETON:   May it please the Court, I appear for the second respondent.  (instructed by Blake Dawson Waldron)

HAYNE J:   I have a certificate from the Registrar stating that he has been informed that the applicant will not be appearing and that no one will be appearing on his behalf on the hearing of the application for special leave to appeal or the application for an adjournment.  As counsel will be aware, a notice of motion has been filed seeking an order that the hearing of the application for special leave be adjourned until the applicant is fit to attend Court.  Perhaps if we deal first with the notice of motion.  Mr Shore.

MR SHORE:   Your Honour, the application in the notice of motion is opposed.

HAYNE J:   I understand that.  There is a considerable affidavit deposing, as I understand it at least, to the course of events that has attended this matter generally.

MR SHORE:   Yes, your Honour, and that has been filed by the second respondent.

HAYNE J:   Yes.  There is, in Mr Ghabour’s affidavit a statement at paragraph 8 that he has “put in an application for legal aid but there has not yet been an outcome for this”. 

MR SHORE:   Yes.

HAYNE J:   Am I right in understanding that that statement, as things presently stand, is not challenged?  I say nothing about how you might have challenged it but - - -

HAYNE J:   Your Honour is correct that it is not challenged.  I have no information to suggest the contrary nor, indeed, any information to confirm it.  As your Honour will observe, it does not indicate when the application was put in and it does seem to have been an application which follows other applications in relation to other parts of the proceedings.  Those applications are sometimes met with success but mostly it has been a catalogue of adviser, followed by adviser, followed by no adviser.

HAYNE J:   Am I right in understanding it that a point, perhaps the principal point, advanced on behalf of both respondents is the matter has long been delayed and has a long and, perhaps on one view, sorry history of procedural steps, they should now not stand out of their processes of execution whether by bankruptcy or otherwise?

MR SHORE:   Yes, your Honour, it is.  Your Honour, the Rules provide in Order 69A rule 15(2) for the matter to proceed in certain circumstances on the written application.  The first respondent would suggest it is an appropriate circumstance for that.

HAYNE J:   I understand that.  What harm, if any, other than the harm of standing out further, will the respondents suffer, if the matter goes over, in effect, for one last time?

MR SHORE:   Your Honour, the ultimate answer to that is none, save for inconvenience and the continuity of something that should have come to an end many years ago.  It is some 17 years since the accident; it is three years since the Court of Appeal; it is a year and a half since the application for leave was filed, and your Honour has referred to the catalogue of events as deposed to by Ms Collins in the affidavit.

HAYNE J:   Not exactly short, is it?

MR SHORE:   No, it is not.  But, ultimately, if the Court felt, in the interests of justice, that it needed to see whether something might come out of paragraph 8 of the affidavit, one could understand the temptation to deal with it that way.  In my submission, the Court ought not deal with it that way because it has simply got to the point where enough is enough.

HAYNE J:   Yes.  Is there anything you would add on the adjournment point, Mr Shore?  The point is perhaps self-explanatory.

MR SHORE:   It is self-explanatory.  It would seem from the medical material attached to Mr Ghabour’s affidavit that the prospect of him appearing in person and presenting his case is minimal within a time frame of six months.

HAYNE J:   I understand that.

MR SHORE:   The only prospect, therefore, is whether he has any chance of having representation that might enable the Court to have the benefit of oral argument.

HAYNE J:   And it is to that that I directed particular attention.

MR SHORE:   Yes.

HAYNE J:   Mr Brereton, is there anything you would add on this issue?

MR BRERETON:   Two matters, may it please the Court.  The first is in response to your Honour the presiding Judge’s question to my learned friend, “What harm would be suffered?.  In my submission, the answer is not none.  The answer is that there are bankruptcy proceedings pending against Mr Ghabour to enforce costs orders.  After the trial and before the appeal there was a disposition by Mr Ghabour of his interest in the matrimonial home to his wife, and we do not know what has happened to that since her demise at the end of last year but as time runs and as it will be longer until a bankruptcy order or a sequestration order may be made, the prospects of setting aside under the Bankruptcy Act such a disposition decrease.

HAYNE J:   When was the disposition made as best you understand it?

MR BRERETON:   As we understand it, after the trial and before the hearing of the appeal in the Court of Appeal.

HAYNE J:   So, that puts it at what year?

MR BRERETON:   About late 1993 or 1994.  We might be able to get some precise details.

HAYNE J:   Understanding the importance simply of effluxion of time, any two-year period has passed.

MR BRERETON:   Yes, your Honour.  I think the next relevant period is five years and that is approaching.  If it is a 1993 transaction, then 1998 is running with us.

The second matter which I would put as being highly important to the adjournment application is the prospects of success of the application in any event.  Your Honours, I might presume, have had the opportunity of examining the application itself to some extent.  It needs to be borne in mind that the only point of principle sought to be raised in the application is whether a jury should have been dispensed with at the trial.  No application to dispense with the jury was made at the trial; no ground of appeal concerning a jury was run in the Court of Appeal.  The prospects of this applicant getting special leave are, in my submission, so remote and so far‑fetched that the prolongation of the exercise is simply not justified.  Those are the matters I would seek to add.

HAYNE J:   Thank you, Mr Brereton.

We are of the opinion that the application enjoys no sufficient prospect of success to warrant the grant of the adjournment sought or of special leave.  Accordingly, the motion stands dismissed and special leave is refused.

MR SHORE:   May it please the Court.

MR BRERETON:   With costs, if the Court pleases?

MR SHORE:   Costs, your Honour, in my case.

HAYNE J:   The motion is dismissed with costs and special leave is refused with costs.

AT 12.52 PM THE MATTER WAS CONCLUDED