Hanson v Buloke Shire Council

[2004] HCATrans 350

[2004] HCATrans 350

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M167 of 2002

B e t w e e n -

SHANE TROY HANSON

Applicant

and

BULOKE SHIRE COUNCIL AND AUSTRALIAN ELECTORAL COMMISSION

Respondents

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 SEPTEMBER 2004, AT 12.04 PM

Copyright in the High Court of Australia

MR S.T. HANSON appeared in person. 

MS C.M. KENNY:   May it please the Court, I appear on behalf of the respondents.  (instructed by Maddocks Lawyers) 

GUMMOW J:   Mr Hanson needs an extension of time, I think.

MS KENNY:   Yes, your Honour.

GUMMOW J:   Is that opposed?

MS KENNY:   That is opposed, yes.

GUMMOW J:   I see, right.  Yes, Mr Hanson, go ahead.

MR HANSON:   The basis of this application is that in the 2000 local government elections of the Buloke Shire Council, three of the Lower Avoca Ward Councillors, being Stuart John McLean, Peter Watts and Matthew Donaldson, ran for re‑election in the campaign, and they ran as private citizens.  However, despite having had some 20 years of combined experience as councillors and commissioners between them, they made a number of breaches of the Local Government Act in their re‑election campaign. 

I raised the breaches of the Local Government Act at the Municipal Electoral Tribunal, and the councillors, despite having committed these breaches as private citizens, after consultation with the Council’s CEO, Peter Overington, they then sought indemnification or representation by the Council’s solicitors, contrary to the Local Government Act, which states that councillors or council employees may only be indemnified for acts undertaken in good faith in the course of their duties, and running as private citizens in their own re-election campaign is not ‑ ‑ ‑

GUMMOW J:   We understand all that background, Mr Hanson, but the matter finds its way up into this Court because of the bankruptcy proceedings, does it not?

MR HANSON:   Yes.  What came out of that ‑ ‑ ‑

GUMMOW J:   Which were a sequel to what you have just been telling us about ‑ ‑ ‑

MR HANSON:   Yes.

GUMMOW J:    ‑ ‑ ‑ but it is the bankruptcy proceedings we have to focus on.

MR HANSON:   Yes.  This constitutes the core of the issue in the bankruptcy proceedings, that the Council’s solicitors, being of the firm Maddock, Lonie & Chisholm, or now Maddocks, were represented by a Mr Mark Hayes who, both as a Rhodes scholar in law and as an accredited specialist in local government, represented the three candidates contrary to the Local Government Act.  Between the second preliminary hearing and the first directions hearing, I caught and exposed the three Lower Avoca Ward Councillors and Mr Mark Hayes for rorting the system.  I raised this rort with the Minister for Local Government, Bob Cameron, I raised it with the Council and I raised it with the Legal Ombudsman.

The Minister for Local Government did nothing other than state that it is up to the Councillors how they spend their money.  The Buloke Shire Council as a body refused to continue to fund the three Lower Avoca Ward Councillors and they refused to continue to indemnify them as the Council’s – or under that thing – and the Legal Ombudsman, Kate Hamond, affirmed that Mark Hayes was representing the Australian Electoral Commission, the Buloke Shire Council and the three candidates.  At the third directions hearing, I raised the issue of Mark Hayes ‑ ‑ ‑

GUMMOW J:   This is a directions hearing before whom, Mr Hanson?

MR HANSON:   The Municipal Electoral Tribunal. 

GUMMOW J:   I know, but the sequel that came out of all of that was a bankruptcy notice.

MR HANSON:   Yes, but the very ‑ ‑ ‑

GUMMOW J:   What we have to look into, if we have to look into anything, is what flows out of all of that part of your dispute.

MR HANSON:   Yes, I am aware of that.  I will get to that in a moment, because this is ‑ ‑ ‑

GUMMOW J:   There is a limited time for oral argument.  We are just trying to assist you to focus you on what seems to be the heart of it.

MR HANSON:   Yes, okay.  At the third directions hearing, when I raised the issue of Mr Hayes representing the Councillors and him rorting the system, Hayes effectively lied to me and the Tribunal.  It was that time that the returned Councillors or the candidates who had committed the breaches of the Local Government Act had then obtained their own private representation, and their lawyer stated immediately that his candidates now wished to be joined as parties to the proceeding.  So Hayes has effectively placed himself in a double bind in relation to his costs.  Firstly, when he was caught out rorting the system, he lied about representing the candidates, and in relation to the issue of his costs ‑ ‑ ‑

CALLINAN J:   Mr Hanson, none of this helps you, really.  Justice ‑ ‑ ‑

MR HANSON:   Well, this is the core of ‑ ‑ ‑

CALLINAN J:   Listen to me for a moment, please.

MR HANSON:   Yes.

CALLINAN J:   Justice Gummow has given you the clearest possible intimation that you should address the bankruptcy, and you are not doing that.  All of this background ‑ ‑ ‑

MR HANSON:   With all ‑ ‑ ‑

CALLINAN J:   Listen to me, Mr Hanson, please.  All of this background is really irrelevant.

MR HANSON:   Well, this is not, because Hayes, in relation to the issues of his costs, he has done work that he was not supposed to be doing, and, two, while not supposed to be doing this work on the other hand, he and the other – he in another realm would be entitled to remuneration for his costs.  Now, this is effectively by lying to the Tribunal.  He has effectively placed himself in a double bind in that he cannot charge for the work he claims he did not do, and, if he now charges for the work that he has done, he has to admit to lying to the Tribunal about having done the work.  This leads to my point, and neither having declared nor removed the costs for his work and neither having added the costs for his work, his costs, in effect, cannot be quantified. 

So therefore his costs, which the AEC and the Council then pursued me for bankruptcy, his costs are therefore null and void, because he cannot present the issue of his costs.  So therefore, for his clients to pursue – okay, so effectively his costs are invalid.  So while I applied for the MET decision to be appealed, and there were seven days to do that, to the Victorian Civil and Administrative Tribunal, I also simultaneously appealed to the registrar of the Magistrates Court for the records of proceedings to determine when and where Hayes had joined which parties to the proceedings. 

Okay, so what happened is, those records were not forthcoming, and when the issue – I had to pursue the obtaining of those records through the Department of Justice, and that took nine and a half months to obtain those records.  By the time, through all the assorted appeal processes, it got to Justice McInnis on 12 June 2002, there were three issues that came about of this:  (1) that I was not represented and I was not able to receive the benefit of representation; (2) he wrote: 

The thrust of Mr Hanson’s application is that the court does not have sufficient information upon which it could make the orders sought at this hearing, that is, it cannot review the registrar’s decision and consider de novo the original application. 

Instead, it is submitted by Mr Hanson on his own behalf that he has now finally come into possession of significant documentary material which he asserts from the bar table would provide him with sufficient material if placed in an affidavit or attached to an affidavit, on another day, could persuade the court that it should act in a manner which would be consistent with the original application to set aside the bankruptcy notice, or, as I have indicated, extend time for compliance.  It is suggested that the applicant requires approximately 60 days within which to arrange for that material to be properly before the court. 

And in section 14 of McInnis’ decision, he wrote that:

In considering the question of an application to provide further time in which material can be placed before this court it is relevant in exercising my discretion to at least analyse the material currently before the court to determine whether there is any merit in the substantive application.  In my view, on the material before me at present, there is clearly no basis upon which the court acting in accordance with the law could set aside the bankruptcy notice or extend time for compliance with that bankruptcy notice. 

So having said that, what that effectively means is that McInnis based his decision upon the material that was before him, and my application to McInnis at that time was for an extension of time to obtain both legal assistance and to process the material and to have it presented in front of the court. 

So because McInnis refused to allow that extension of time, I then appealed his decision before Justice Marshall.  In pursuing that application, I made an inquiry about the actual process of making an application for the Federal Court’s legal referral scheme.  What came about was that the registrar or one of the registrars did not know how to do the application.   She did not have any material in front of her and there were no forms that

were available, so she went to inquire as to how I ought to pursue that process.

Now, what then happened is that she then went and inquired with Justice Marshall, and Mr Justice Marshall then undertook to treat that as an actual application for referral to the legal assistance scheme.  Now, what was wrong with that was that he then refused the application on the grounds that he thought that the case did not have sufficient merit to warrant referral to the Federal Court’s legal assistance scheme.  When it came down to it, I was effectively placed into a catch 22 situation, okay. 

When the matter appeared before Justice Marshall, he used subjective reasoning to dismiss the application for both referral to a legal assistance scheme and to refuse an extension of time to produce material to appeal McInnis’ decision.  Okay, like if the material is there, if he does not have the material in front of him, he then cannot make the decision upon the merits of the case, and because he then chooses to refuse to refer me to the legal assistance scheme and also to allow an extension of time to put together a case, I then am placed into the catch 22 situation where I cannot produce a case without representation and an extension of time. 

My leave to appeal before the Court today is that Justice Marshall should never have made that decision, in that I should have been referred to the legal assistance scheme and been allowed an extension of time to produce the case, so then the case could be either pursued with its assorted merits or dismissed on the merits of the case.  What it comes back down to is that the matter of the application of bankruptcy was based upon invalid costs, where a legally trained Rhodes scholar and accredited specialist in local government had actually lied to the Tribunal about who he was and who he was not representing, therefore making his costs invalid.

So my leave before the Court today is to actually ask for leave to appeal because Marshall cannot place people in the catch 22 situation of, you know, refusing to supply referral to a legal assistance scheme and refusing to supply an extension of time to produce an appeal to McInnis’ decision, and contrasting that with that I cannot produce a case without representation or an extension of time.

GUMMOW J:   Yes, thank you, Mr Hanson.

MR HANSON:   Okay, thank you.

GUMMOW J:   Yes, we do not need to call on you, Ms Kenny.

The Federal Court dismissed an application for an extension of time within which to lodge an appeal from an order of the Federal Magistrates Court.  The magistrate had dismissed an application concerning a bankruptcy notice issued against the applicant.

The applicant also complains in this Court that an application for legal assistance made by him pursuant to Order 80 of the Rules of the Federal Court was not dealt with correctly by Justice Marshall.  The complaint is not made out.  The application was refused by another judge of the Federal Court.  There was ample basis such as an absence of sufficient prospects of success to justify that refusal.

The result is, on the matters before us today, that we would grant the application for extension of time but, nevertheless, there are insufficient prospects of success in any appeal to this Court to warrant a grant of special leave.  Special leave is refused with costs.

AT 12.21 PM THE MATTER WAS CONCLUDED