Hercules v Phease; Hercules v Lah

[1993] HCATrans 64

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M77 of 1992

B e t w e e n -

KEITH ALAN HERCULES

Applicant

and

PERCIVAL CHARLES PHEASE

Respondent

Office of the Registry

Melbourne No M78 of 1992

B e t w e e n -

KEITH ALAN HERCULES

Applicant

and

MAUREEN ELLEN LAH

Respondent

Applications for special leave

to appeal

MASON CJ
BRENNAN J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 MARCH 1993, AT 3.12 PM

Copyright in the High Court of Australia

Hercules 1 12/3/93

MR D.A. PERKINS: If it please the Court, I appear for the

applicant. (instructed by David V. Finney Pty)

MR J.M. SELIMI:  May it please the Court, I appear for both

respondents. (instructed by Mulcahy Mendelson &

Round)

MASON CJ: Yes, Mr Perkins.

MR PERKINS: If the Court pleases, it is my application that

the hearing of these applications for special leave

be adjourned. The grounds on which I make that

application are that the brief which I have has

only been in our possession since last Wednesday,

and I consider that I have not had sufficient time

to - - -

MASON CJ: Since last Wednesday?

MR PERKINS:  Sinc·e last Wednesday, and I consider that I

have not had sufficient time to put into an order

suitable to be placed before this Court the matters

that I wish to put forward in relation to this

application for special leave.

MASON CJ: But I would have thought two days would have been

more than ample time to prepare an application for

special leave that is within a confined compass.

MR PERKINS:  I can only say that if I have failed to meet

the expectation that Your Honour had in that

respect, I nevertheless have not found that the

time that I have had in relation to this matter has

been adequate.

MASON CJ: What is the difficulty, Mr Perkins? Can you give

us some indication of the difficulties that have

confronted you in preparing the case.

MR PERKINS:  The case involves questions relating to the

circumstances in which a decision of a judge should

be set aside or treated as being able to be set

aside by virtue of correspondence received by the judge after the conclusion of argument and before decision, but not disclosed to one of the parties.

GAUDRON J:  Does it, or does it not involve the question

whether leave should have been granted to raise

additional grounds of appeal with respect to that

matter in circumstances where the only substantive

issue in the appeal was a question of law of a

quite different character?

MR PERKINS: In my submission, the question before the

Full Court was not simply a matter of law. It is

true that in characterizing the question or in

coming to the question, His Honour Mr Justice Marks

Hercules 2 12/3/93

in particular referred to the question as being one

of law. It is true, as a matter of history, that

the question which His Honour Judge Stott decided

had been a matter of law but, with respect, that is

not to say that that is the only question which can

be argued on the appeal.

If in fact there was a letter sent from the

solicitor for the applicant before His Honour

Judge Stott to His Honour Judge Stott, and that

letter was a letter which raised a number of

matters which did or could have called for an

answer, then the question as to whether the present

applicant was entitled to answer it was indeed

another question of law that the Full Court, in my

respectful submission, did not seem to appreciate

existed.

And that is an important question which goes,

in my submission, to the root of the administration

of justice. It goes to the root of the

administration of justice not only in the way that

it may be primarily observed, and that is by

looking at the circumstances in which the law

prevents or proscribes the sending ·of

correspondence to judges and, in turn, looking at

that as an aspect of due process, there are also
involved questions relating to the law of contempt

and questions relating to the law of apprehension

of technical bias. I should make it clear, as has

been made clear in the Full Court, that there is no

suggestion of actual bias. But, in my submission,

those sorts of questions arise from the things

which occurred before His Honour Judge Stott.

Now, as to the question whether it would be

open to the Full Court to characterize the
correspondence as being, from a legal point of

view, innocuous, in my submission, that question

really seems to have passed unnoticed by the court,

but there is a genuine question as to whether or

not a letter which is in fact a departure from the

accepted norms of judicial procedure does have the

effect or should have the effect of making the

decision that follows or that comes after that

departure a decision which can be set aside.

That principle is a matter which is attended with some doubt. I proposed to refer to what was

said by the Federal Court, by His Honour

Mr Justice Hill in a case of Tevelly ??? where he refers to the principle as being one which is a

matter attended with some doubt. He refers to

de Smith's book on administrative law.

Hercules 3 12/3/93

BRENNAN J:  Mr Perkins, the application for special leave is

to appeal from a decision of the Full Court, is it

not?

MR PERKINS:	Yes.
BRENNAN J:	Now, the Full Court had to decide whether

Judge Stott's decision should stand or be set

aside.

MR PERKINS: Well, in the first instance the Full Court had

to decide the question whether leave should be

granted to amend.

BRENNAN J:  And it should not have granted any leave to

amend if the question that the leave to amend was

going to raise could not have affected the ultimate

decision whether or not to set aside Judge Stott's

decision.

MR PERKINS:  Yes, I accept that that is so but, with

respect, that is the question.

BRENNAN J:  Now, the next question is, if the decision of

Judge Stott was one solely of law, no matter what

the procedure was before the county court, the Full Court's decision would be determined as a matter of law, and solely as a matter of law, and

without regard to the proceedings before

Judge Stott.

MR PERKINS: With respect, it would be impossible to

characterize the whole of what happened in

His Honour Judge Stott's decision as simply being a

matter of law. It is true that part of the
decision had that character but, in my submission,

notwithstanding -

BRENNAN J:  Were there any questions of fact to be found by Judge Stott?

MR PERKINS:	Yes, in my submission, in a sense there were.
BRENNAN J:	What sense?
MR PERKINS:	In the sense that the matter which could have

been taken by His Honour Judge Stott from the

letter sent to him, which was a letter which raised

questions or which could have been relevant to
questions of bona £ides in the sense that it raised

questions about the costs of the proceedings. Of

course, the costs of the proceedings are a relevant

matter and may be relevant to the exercise of a

discretion but that is only one part of the

position because in so far as they are relevant, in

so far as they may influence the judge's mind or

his disposition about the matter, the party who did

Hercules 12/3/93

not know about the letter and who did not write it

was entitled firstly to be told about it and

secondly to make whatever submissions he wished to

make, to make a judgment about what it was

necessary to do, and those matters are, in my

submission, matters of strict procedure which must

be followed by a court. To make the observation

that there is, in what His Honour Judge Stott

decided, a question which could be analysed as

being merely a question of law, it can be allowed

that that can be done but there is the other aspect

of the matter, the procedure which, as a matter of

fact, was entailed in what His Honour Judge Stott

did.

Now, questions about that procedure, in our

submission, are legitimate questions for an appeal
and, in my submission, it was wrong of the

Full Court to refuse to allow those questions which may aris~ in any case, whether it is a case involving a question of law or whether it is not.

In my submission, it should be open to any person

who finds himself in the position that a procedure

that has brought about a judgment has not been

regular, to make a complaint about that.

In my submission, a question can arise as to whether there are classes of correspondence which

can be said to be innocuous in the legal sense, in

the sense that no further consequence should follow

from their having been received. And it is

possible to imagine simple letters, which cannot

have any bearing on the matter at all, of which no

complaint could be made but, in my submission, the

letter in this case is not in that category. It

does raise questions which are capable of being

seen as going to the bona fides of the application

and, because of that, it was a letter which, at the

very least, the present applicant was entitled to

know about and comment on and, as a result of that,

the question was sufficiently open that the

Full Court should have granted leave.

I said before that to some extent there were

questions of fact involved in what His Honour did.

It is true to say that His Honour - and

His Honour's judgment reveals this - went through

the various categories of cases in which a

complaint made can be subject to absolute or

qualified privilege. And it may be that no quarrel

is made of the way in which His Honour set out

those categories. But then the next part of what

His Honour had to do was to decide into which of

those categories the things that had happened in

the instant case fell, and it is my submission that

it was there that His Honour had to make some

decisions or assessments of fact and it may well be

Hercules 12/3/93

that, in circumstances where there was an actual or

implicit attack on the bona fides of the plaintiff

in the case, His Honour was influenced by what was

said in the letter.

It must be said that His Honour did not spell

out his approach to the facts to any degree, so

whatever errors His Honour may have made in that

respect are latent. In my submission, the letter

may well have affected the way in which His Honour

Judge Stott approached the categorization, the factual matters - - -

GAUDRON J:	Even if that be so, the question with which the Full Court would ultimately be faced was: was there
absolute privilege or not?  And they would be
uninfluenced by the matter that had, on your
hypothesis, affected Judge Stott.  So it would not
be relevant to the disposition of the appeal in the
Full Cou·rt.

MR PERKINS: With respect, that would be so in certain

events. It would not be so in the event that the Full Court had allowed the application to amend,

had allowed a ground to be added, and the Full

Court had ultimately said, as it possibly-may have

said, "We don't find it necessary to go into the

question of whether His Honour was right or wrong
in relation to the matter of malice or otherwise

because we consider that the situation was one in

which the letter should not have been sent. It is

fundamental to the course of justice that no

communication be sent from anybody to a judge in

connection with the matters that the judge has to
decide, except in the circumstances that the law

provides and, in particular, except in the

circumstance that notice is given of what is being

said and there is an opportunity to meet it".

BRENNAN J:  Mr Perkins, I have got considerable sympathy

with that view but, if you take yourself to the next stage, if the Full Court had said that, it

would still have to decide what to do about the

order that Judge Stott had made.	What would they
do?

MR PERKINS: Yes, I would say that they may do a number of

things. One of the things that the Full Court

might do would be to say that this matter should

now be sent back to be decided by a judge in

circumstances where the decision making process

remains pristine and whatever matters of fact there

are mixed up in the ultimate decision that

His Honour Judge Stott came to can be then

disentangled, can be looked at again

dispassionately by another judge, and that is one

of the orders that the Full Court might make.

Hercules 6 12/3/93

Another order, undoubtedly, is that the Full

Court might go on to say that the decision made by

His Honour Judge Stott was correct or was, in some

respect, incorrect but, in my submission, what

should happen is that the matter should be remitted

to be determined by another judge. I accept that, as a matter of what the Full Court might do, there are other possibilities, but the one that should

occur, in my submission, is that the matter should

be sent back to be redetermined appropriately.

If the Court pleases, I began by making an

application that the matter be adjourned. That was

my application.

MASON CJ: Yes, but I think that you have demonstrated in

the way in which you have presented argument that

you really did not need an adjournment, Mr Perkins.

I think you have said everything that could be said in suppo.rt of the application.

MR PERKINS: With respect, I am not confident that I have.

I think, in the circumstances - well, if the Court pleases.

MASON CJ:  Mr Selimi, can you provide us with an explanation for the course that was taken in this matter?

MR SELIMI: Indeed, Your Honours.

MASON CJ:  On the face of it, it seems extraordinary that a

letter should be sent to the judge without

notification to the other side.

MR SELIM!: Well, that is the question, Your Honour. The

applicant has sworn that it was sent to the judge

but the evidence indeed shows that it was not sent

to the judge; it was sent to the judge's associate.

The decision of the Full Court below centred solely

upon this question as to whether in fact the letter indeed ever came to the attention of His Honour Judge Stott.

MASON CJ: But why was not a copy sent to the other side?

MR SELIM!: That, Your Honour, must simply have been an

oversight. Obviously, with the benefit of
hindsight, it perhaps ought to have been sent, but

in terms of the relevant principle involved so far

as these applications are concerned, the simple

answer to the applications made by the applicant is

that the Full Court below answered a question of

fact in relation to whether the circumstances

deposed to by the applicant were such that a fair

minded observer might bear a reasonable

apprehension as to whether or not Judge Stott might

not have brought an impartial and unprejudiced mind

Hercules 12/3/93

to the resolution of the question of absolute

privilege.

The question of absolute privilege was the only question before His Honour.	It was solely a
question of law.

BRENNAN J:  I do not think the Chief Justice's question was

directed to that. It was seeking an explanation

for the extraordinary conduct of a solicitor for

one party sending a communication to the associate

to a judge who has a decision reserved, when that

communication is not favourable to the other party,

without giving the other party notice of it. It

seems an extraordinary step to take, and all you

say is that it must have been an oversight.

MR SELIMI: Well, that is the simple answer, Your Honour.

The point, though, is that the applicant in fact

did know of the existence of that letter of 22 April prior to the delivery of judgment, contrary to what the applicant deposed to before

the Full Court below. In his affidavit before this

Court, he in fact has deposed that Judge Stott

himself informed him that he had received that

letter, and that was prior to the delivery of his

judgment.

In my submission, when one applies the case of

Vakauta v Kelly to the circumstances, if indeed the

applicant genuinely wished to challenge this
particular point or object to it, then the

appropriate time would have been prior to the

delivery of judgment. He was well aware of it, and

yet that contradicts what the applicant deposed to

in the court below. As His Honour

Mr Justice Marks, the presiding judge, said in the

court below, the gravamen of the applicant's

complaint was that he did not know of the existence
of the letter, but his affidavit sworn in this

Court in fact testifies to the contrary.

MASON CJ: But Mr Selimi, I am concerned with your conduct

in the matter. I am not concerned with your answer to the application for special leave at the present stage. It just strikes me as extraordinary that

you should say to us that the failure to send a

copy of the letter to the other side was just a

mere oversight. I would have thought that it was

fundamental to the proper conduct of legal

proceedings that if the solicitor for one party

sends a letter to the associate to a judge who has

a decision reserved, seeking some step be taken in

relation to the proceedings, that it would be a

matter as of course to send a copy of the

communication to the other side.

Hercules 8 12/3/93

MR SELIMI:  I accept what Your Honour says in that matter,

but the question remains, and that question is
whether or not there is any special leave point in

respect of - - -

MASON CJ: True, but what I am surprised at is that all you

say to us is: "This is a matter of oversight". You

do not express some acknowledgement for your part

that a serious error was made; a very serious

error.

MR SELIMI:  Your Honour, I am the first one to express my

absolute regret at what has happened, in terms of
the fact that the letter was sent and a copy was
not sent to the other side, but that, quite

frankly, with all due respect, was an oversight.

This entire barrage of litigation which has been

instigated against my clients has taken my clients

through practically every jurisdiction - through

the magistrates court, the county court, the

Full Court, and now before this Court~ I have been

handling all of these matters on my own and,
although I certainly do not rely upon that as

mitigation, as it were, the bottom line really, so

far as these particular applications, is that there

is no question of general principle which is raised

by these applications.

MASON CJ: Well, yes, but we do not want to hear you on the

substance of the application, Mr Selimi. All I was

concerned to do was to ascertain from you what, if any, explanation you had for not sending a copy of

the letter to the other side. Now, you have said

all you want to say on that issue, so we need not

trouble you further.

MR SELIMI: If it please Your Honours.

MASON CJ:  In the view of the Court, the decision of the

Full Court of the Supreme Court was correct. The

application for special leave is therefore refused.

MR SELIMI: If it please the Court, I seek costs in respect

of both applications.

MASON CJ:  Do you want to say anything about that,

Mr Perkins?

MR PERKINS: Yes, I do, if the Court pleases. In my

submission, the present respondent should not have

the costs of the application. The application and,

indeed, the application before the Full Court, were

brought about as a result of conduct on the part of

the legal adviser for the respondents which has

never before been explained and has now been

explained in a manner which, in my respectful

submission, is completely unsatisfactory. In my

Hercules 9 12/3/93

respectful submission, the applicant should not be

ordered to pay the costs of this application.

MASON CJ:  The Court is of the opinion that each party

should pay its own costs of these applications.

MR PERKINS: If the Court pleases.

MASON CJ:  The Court will now adjourn sine die.

AT 3.40 PM THE MATTER WAS ADJOURNED SINE DIE

Hercules 10 12/3/93