Green v Dare & Ors

[2004] HCATrans 236

[2004] HCATrans 236

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B20 of 2003

B e t w e e n -

ROBYN PATRICIA GREEN

Applicant

and

TRACY JOY DARE AND PHILLIP ARTHUR HENNESSY

First Respondents

NOWBROOK PTY LTD

Second Respondent

Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 23 JUNE 2004, AT 12.32 PM

Copyright in the High Court of Australia

MS R.P. GREEN: appeared in person.

MR K.S. HOWE:   If it please the Court, I appear for the first respondent.  (instructed by Hewlett & Company).

CALLINAN J:   There is no oral argument in this matter, is that correct? 

MR HOWE:   No, your Honour, there is no oral argument, although Mrs Green did inform me just prior to your Honours coming in that she wishes to make some submissions or comments.

CALLINAN J:   Did you want to say something, Ms Green?

MS GREEN:   If I may, please, your Honour.

CALLINAN J:   Yes, of course.

MS GREEN:   It is just like a victim statement.  I have just typed it out because I cannot read it.  It is hard to believe that 12 years ago I was a healthy well-balanced human being.  Dr John Chenoweth’s surgery and, more recently, his bankruptcy proceedings have reduced my life to that of an indigent disability pensioner barely able to cope with the day‑to‑day mental and emotional demands.  Not only has Dr Chenoweth robbed me of my physical health and well-being, he is now endeavouring to make me homeless as well.  After a newspaper article, I have been contacted by people from all over Queensland voicing their concern about medical and legal inadequacies inflicted on me. 

I have chosen to challenge the first respondent’s conduct as representatives of KPMG as my bankruptcy trustees because at no time do I consider that I was capable of conducting my own legal proceedings.  I believe that I qualified for pro bono legal representation as an indigent disability pensioner who needed representation in order to get a fair hearing.  It is my belief that all Australians no matter what race, creed or colour are entitled as a basic human right to a fair trial, this has been denied me.  It is also my belief that my case was used as a means to deter other litigants from suing doctors and I am reaping the repercussions of challenging the power and influence of a professional body. 

The second challenge that I made was to the right of Dr John Chenoweth to instigate bankruptcy proceedings against me for his costs in the medical negligence litigation.  Dr Chenoweth’s liability to pay his own court costs if he lost was never an issue as UMP had agreed to pay his costs for him.  There is doubt that Dr Chenoweth was even a member of UMP when he operated on me or had any indemnity insurance at all.  I believe

that UMP agreed to enter into the litigation belatedly as a means of ensuring the medical profession at large would not have to suffer financially in the future if he lost his defence.  These facts could be verified by discovery if I had succeeded.

In a fair open justice system, how does the victim somehow become the culprit?  We are supposed to have an egalitarian society in Australia but it is painfully obvious from my experience that money and power are what gets justice.  The High Court recognised in the Dietrich’s Case that the right to a fair trial is a central pillar of our criminal justice system.  It is no different in our civil justice system.  The High Court recognised in the Lindon Case that it could be asked to decide on questions of social importance and genuineness of concerns.  Thank you, your Honours.

CALLINAN J:   Do you wish to say anything, Mr Howe?

MR HOWE:   I do not.

CALLINAN J:   There is no reason to doubt the correctness of the decision from which the applicant seeks leave to appeal.  The application is dismissed.  Do you ask for costs, Mr Howe?

MR HOWE:   Yes.

CALLINAN J:   What do you say about costs, Ms Green?

MS GREEN:   What can I say?  I am a disability pensioner.

CALLINAN J:   Well, the application is dismissed with costs.

AT 12.37 PM THE MATTER WAS CONCLUDED