Harradine v The University of Adelaide

[1990] HCATrans 191

Abt -!.)"~USTRALIA,11.!---s,-)»~$-««.('-'-

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A46 of 1989

B e t w e e n -

BRENDAN CONWAY HARRADINE

Applicant

and

THE UNIVERSITY OF ADELAIDE

Respondent

Application for special leave

to appeal

BRENNAN J

TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 23 AUGUST 1990, AT 3.44 PM

Copyright in the High Court of Australia

Harradine 1 23/8/90

MR B.C. HARRADINE:  May it please the Court, Your Honours,

my name is Harradine. I am the applicant in this

matter, I am also counsel in this matter and I will

address the Court on that issue shortly.

MR A.J. BESANKO: If the Court pleases, I appear for the

University of Adelaide. (instructed by Finlaysons)

BRENNAN J:  Mr Harradine, you had better address first the

question of Order 69A rule 11.

MR HARRADINE:  Thank you, Your Honour. The applicant thanks

the Registrar for foreshadowing that matter would

be raised, Your Honour.	I do have some authorities
here, Your Honour.	I invite this honourable

Court's attention to the very first page in the
authorities and Your Honours might have that matter

before them. It is Collins v Reg,

(1975) 133 CLR 120.

Your Honours, in this matter Order 70

rule 2(6), which states that an application for

special leave to this honourable Court must be made

by counsel was sought to be impugned as ultra vires

the Judiciary Act. The Court held that section 78

of the Judiciary Act, which enabled a party to

appear personally, was distinguishable from the

rule because the rule did not refer to "parties".

Your Honours, it is the respectful submission

of the applicant that he is not caught by this rule

and if the rule said that an applicant for special

leave to the Full Court must be represented by
counsel that would be different, Your Honours, but

it says, "An application for special leave must be

made at the Full Court by counsel." I am counsel

of this honourable Court and therefore am

making - - -

McHUGH J: But you are not appearing as counsel. You are

appearing as a party. You are not representing any

party. You are appearing for yourself.

MR HARRADINE: With respect, Your Honour, the cases on this

matter and the matter of Feretta v the State of

California is cited in this honourable Court's

judgment in Collins v Reg. Your Honour, that

refers to the kinds of considerations that in the
applicant's view have given rise to the relevant
rule, that is Order 70 rule 2(6), and it is the

applicant's view that such a rule is designed to

avoid vexatious claims, lack of conciseness and

cogency in argument, therefore wasting the Court's

time and, indeed, thereby society's time.

Furthermore, Your Honour, it is submitted that the

rule is in place to avoid the disrepute that the

Harradine 2 23/8/90

law might be brought into by an incompetent person

conducting their own case.

Your Honours, the applicant invites this

honourable Court to use the inherent jurisdiction

that this Court has to mitigate the effects of its

rules without deciding the question. The applicant

prays that this honourable Court is so moved and in

support of that submission makes a solemn

undertaking that the applicant will conduct himself

in the proper manner of this Court.	That is the
submission on the preliminary matters,
Your Honours.

TOOHEY J: Mr Harradine, I take it from the way in which you

have just presented your argument that there is no

decision precisely in point or that is a useful

guide to the question whether a person who is a

barrister - - -

MR HARRADINE:	I regret, Your Honour, I was - - -
TOOHEY J:	- - - and appears in a case in which he is a

party can be said to be appearing by counsel.

MR HARRADINE:  Yes, Your Honour. I am afraid that I was

unable to find one. I do know of a case where, in

my understanding, a person appeared as junior in

their own matter before this honourable Court but

certainly there does not appear to be a case in

point, Your Honour, and it is my respectful view

that the applicant in this matter is not caught by

the rule.

BRENNAN J: Mr Harradine, the problem seems to be this,

though, does it not, in terms of principle, that

Order 69A rule 11 is there not simply in order to

ensure that the application will be moved by

somebody who has the necessary legal qualifications

or academic skill or appreciation of the relevant

principles but also that all the discretions which

counsel must bring to bear in the ordinary course

of conducting a professional practice, including a

discretion as to whether he will make submissions

which in his view, professionally, are

inappropriate, can be available to protect the

Court in applications of this kind? That is something which the litigant in person cannot

really give an assurance about.

MR HARRADINE:  Yes, Your Honour, I appreciate my assurance

has a self-serving quality about it.

BRENNAN J:  I am not seeking to impugn your assurance and

the genuineness of it, I simply wish you to address

the question, if you wish to do so, that whenever a

litigant gives an assurance it is not one upon

Harradine 23/8/90

which the Court can act for the very reason that

the rule exists in order to place that independence

Df judgment between the litigant and the Court. That is the difficulty, is it not?

MR HARRADINE: Yes, Your Honour. With respect, I fully

appreciate the import of Your Honour's words or at least the applicant believes he does, Your Honour.

Your Honour, the matter before the Court, it is

submitted, is one which is likely not to give rise

to the difficulties to such an extent that one

would normally expect, that Your Honour has raised,

and in addition, Your Honour, as counsel in this

Court, unlike a litigant in person, the applicant

is subject to the censure of this Court and,

without wishing to make any further self-serving

comments, Your Honour, it is submitted that such

censure, if counsel did not conduct himself

properly, would have considerable impact, as would

it have by any other practitioner before this

honourable Court and, Your Honour, I cannot think

of anything more that I can say in this matter.

BRENNAN J:  No. Thank you, Mr Harradine. I do not propose

to call upon you on this aspect of the matter,

Mr Besanko. It is doubtful whether you have any

standing to deal with the question we have raised
with Mr Harradine. The Court will adjourn briefly

in order to consider what course it will take. If

you had any authority that was relevant we would be

prepared to take it but we do not wish to hear any

argument.

MR BESANKO:  Your Honour, we were aware of the possible

problem. We wish to take a neutral stand in the

matter but, Your Honour, we did have a look at the

position as stated in Halsbury and I apologize for

referring the Court to first principles but in

volume 3 of the 4th edition of Halsbury, at

paragraph 402 there is a discussion of the position

of a barrister who is also a party appearing in the

case and there are some cases collected in the

footnotes of that passage.

BRENNAN J:  Thank you. Do you wish to say anything about

that, Mr Harradine?

MR HARRADINE:  No, Your Honour.

BRENNAN J: The Court will adjourn briefly to consider the

matter.

AT 3.54 PM SHORT ADJOURNMENT

Harradine 4 23/8/90

UPON RESUMING AT 4.14 PM:

BRENNAN J: The applicant has been admitted to practise as a

barrister and solicitor and is entitled to appear

as counsel in this Court but here he is a party

litigant and a party litigant must appear either

personally or by counsel.

In New Brunswick and Canada Railway Company v Conybeare, (1862) 9 HLC 711, 11 ER 907, Lord

Westbury, Lord Chancellor, said with reference to

an application by a party litigant who wished to

appear as junior counsel:

But not both as party and counsel. The

Respondent must elect to argue in person or

not. There cannot be a mixture of the two

characters.

And so it is in this Court. If a litigant, being

counsel, chooses to appear in person he is entitled

to the privileges only of a litigant in person.

Otherwise he must appear by counsel; that is by
counsel other than himself. Here, Order 69A

rule 11 provides that:

An application for special leave to appeal shall be made to a Full Court by counsel.

As Mr Harradine appears here in person, not by

counsel, we cannot hear him.

TOOHEY J:  I agree with the construction placed on Order 69A

rule 11 of the High Court Rules by the presiding

judge. For myself, I would reserve the question

whether there is a power to dispense with that
rule, whether in the exercise of the inherent

jurisdiction of the Court or under Order 64

relating to non-compliance with rules until that

matter has been more fully argued.

McHUGH J:	I agree with the reasons of Mr Justice Brennan.
BRENNAN J:	In those circumstances we will not hear you,

Mr Harradine.

MR HARRADINE:  Thank you. I wonder, Your Honour, as a

litigant in person whether I could seek to have the

matter held in the list to arrange counsel so that

the matter is not destroyed.

BRENNAN J: Yes. What do you have to say about that,

Mr Besanko.

Harradine	23/8/90
MR BESANKO:	We do not wish to take any view on that,

Your Honour.

BRENNAN J: Let the matter stand over on the list.

MR HARRADINE:  Thank you, Your Honour.

AT 4.17 PM THE MATTER WAS ADJOURNED SINE DIE

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