Hussein v Shehata

[2005] HCATrans 813

[2005] HCATrans 813

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S282 of 2005

B e t w e e n -

FAIZUL HUSSEIN

Applicant

and

DR NABIL SHEHATA

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 6 OCTOBER 2005, AT 9.19 AM

Copyright in the High Court of Australia

HAYNE J:   The respondent is a surgeon.  In November 1999, he performed a surgical procedure on the applicant. 

The applicant subsequently brought an action against the respondent in the District Court of New South Wales for damages for professional negligence in respect of the respondent’s treatment of him.  After negotiations, the applicant’s solicitors by facsimile transmission accepted an offer of compromise of the action which had been made by the respondent and which, if accepted and implemented, would have resulted in judgment for the respondent with each party to pay his own costs.  On the following day, which was a Saturday, the applicant sought to withdraw his acceptance of the offer.

The respondent then sought to enforce what he asserted was a concluded agreement for the compromise of the applicant’s action against him in the Equity Division of the Supreme Court of New South Wales. 

The matter came on for trial before Barrett J.  At trial, the applicant gave evidence complaining that he had agreed to accept the offer on the advice of his solicitor who had overborne his free will. 

The trial judge concluded that the applicant had knowingly agreed to accept the offer and was aware that there was a serious risk that his action against the respondent would fail, and that he would then have been exposed to an order for substantial costs.  The case, his Honour said, was in any event one in which there had been no unconscionable conduct on the part of the respondent.  It followed that the respondent was entitled to an order for specific performance of the agreement for compromise and costs.

The applicant sought leave to appeal to the Court of Appeal of New South Wales.  In that Court, he argued that he had not had access to telephone records of conversations with his former solicitor, which, by reason of their short duration, supported his claim that his solicitor had not sufficiently explained the prospects of his claim against the respondent. 

The Court of Appeal (Giles and Bryson JJA) carefully considered the applicant’s claims and arguments and concluded that because an appeal would have no prospects of success, leave should be refused. 

It is against that refusal by the Court of Appeal that the applicant seeks special leave to appeal to this Court.  We have considered the written arguments of the applicant which, in substance, had been carefully considered and ultimately rejected by the Court of Appeal.  There is no reason to doubt the correctness of that decision, and accordingly the application must be dismissed. 

Because the applicant is unrepresented, the application falls to be dealt with in accordance with rule 41.10 of the High Court Rules 2004. Pursuant to rule 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application. I publish that disposition.

AT 9.21 AM THE MATTER WAS CONCLUDED