Jago v Paal Frame Pty Limited

[1990] HCATrans 162

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S67 of 1989

B e t w e e n -

NOEL HAROLD JAGO

Applicant

and

PAAL FRAME·PTY LIMITED

Respondent

Application to dismiss for

want of prosecution

MASON CJ MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 6 AUGUST 1990, AT 4.51 PM

Jago 1 6/8/90

Copyright in the High Court of Australia

MR D. HIGGS:  May it please the Court, I appear for the

respondent. (instructed by Coleman & Greig).

Your Honours, Mr Jago appears in person in an

application to have the proceedings struck out for

want of prosecution. If I could hand up to

Your Honours a chronology?

MASON CJ: Yes. Now, Mr Jago, you appear in person, do you?

MR N.H. JAGO:	May I address the Bench, Your Honour?
MASON CJ:	Mr Jago, we are now about to hear the application

to dismiss your application for want of

prosecution.

MR JAGO:  I understand that, Your Honour.

MASON CJ: Yes, well now, would you take your seat at the

bar table?

MR JAGO:	Thank you.
MR HIGGS:	Your Honour, briefly stated, the proceedings

before the Full Court of the Federal Court involved

a bankruptcy petition that was served upon Mr Jago

on 1 December 1987. A sequestration order was made

on 14 September 1987 but was later annulled on

5 November 1988 as set out in the chronology. That

was annulled by consent and His Honour

Mr Justice Einfeld, who heard the matter at first

instance, had the matter relisted on

5 December 1988, the significance of that date for

the purposes of the appeal being that it was four

days after the 12 months that is the prima facie

life of the petition in accordance with the

provisions of section 52(4) of the Bankruptcy Act.

On that occasion His Honour adjourned the

matter. There was no dispute about the debts not

being satisfied and a sequestration order was made

on 12 December 1988, the point being raised by the

appellant being, in effect, that by reason of the

12 months having elapsed, as set out in
not have power to make the sequestration order.	section 52(4) of the Bankruptcy Act, the court did are set out at page 22 of the application book and
section 52(4) is set out at page 23 and, in effect,
the basis of the appeal being dismissed was this:
that there is a rider to section 52(4) as set out
on page 23 to the effect that the 12 months does
not apply in the event of a sequestration order
having been made within that time. That did occur
here and by reference to Clyne's case that is set out there, which was not on all fours but was
similar to the facts of this case, the Full Court
found that the rider to section 52(4) applied and,

Jago 6/8/90

therefore, the sequestration order of

12 December 1988 was valid.

That judgment was handed down on 7 June 1989

as set out in the chronology and since then the

application was made to this Court on 19 June 1989;

. the application book was lodged in time and

thereafter there have been a number of occasions

where the matter has been set down before the Court
but it has not proceeded because of the failure of
the applicant to retain counsel for the purpose of
the application.

MASON CJ: Are they occasions when the matter has been

withdrawn from the list by the Registrar?

MR HIGGS: That is so, Your Honour.

MASON CJ:  That was on 8 December 1989; 16 February 1990?

MR HIGGS: That is so, Your Honour.

MASON CJ: And that next date should be 1990 as well.

MR HIGGS: That is so, Your Honour, yes. I am sorry, no, it

was not withdrawn on that occasion. That simply

puts in a short chronology, a further letter that

was written to Mr Jago by my instructing solicitor

foreshadowing this application.

Your Honour, the correspondence in the

affidavits filed in support, and I have also spoken

to Mr Jago outside the Court before coming in, the

reason put forward by him, in essence, as I

understand it for not having retained counsel for

the purposes of pursuing the special leave

application is basically his financial difficulty

on his part to retain a solicitor and counsel for

the purposes of this application.

In addition to that, Mr Jago tells us - and

there is, indeed, a medical certificate that was

recently forwarded to us - that he was involved in

a motor vehicle accident on 7 November 1989 and

that thereafter, I think in about December 1989, he

had to go to hospital and the injury sustained by

him, in effect, was a fractured sternum and he also
had some problems with cerebral contusions and the

like. He says that because of those matters he has

not been able to raise the finance; has not been

able to retain counsel.

Your Honours, to update the situation and to

put the matter fully, might I just hand up an

updating affidavit by my instructing solicitor,

Mr Booth. It sets out further correspondence - - -

Jago	6/8/90
MASON CJ:	Has this been shown to Mr Jago?
MR HIGGS:	No, I am sorry, Your Honour, it has not. I have

just handed it to him. Basically, it annexes a

letter from him to my instructing solicitor, and if

I might just show Mr Jago now, which sets out the

last communication between himself and my

instructing solicitors where he states that

basically the reason for him not - that he was

suffering from "a fractured sternum or spine and if

you contemplate any legal action in the immediate

future I will not be fit to attend." And there is

annexed the medical certificate where it is said

that he suffered a fractured sacrum as a result of

the motor accident of 7 November 1989.

The other correspondence simply is

correspondence between my instructing solicitors

and various solicitors that have been nominated

from time to time in the correspondence by the

applicant as being the people engaged by him to

prosecute this appeal and both those people - I

think it is the Solicitor for the Australian Legal

Aid Office and a firm of solicitors, Stacks, have

both written back saying that they do not appear for Mr Jago and are not instructed in respect of the appeal.

MASON CJ:  Now, there is correspondence with the Legal Aid Commission. Was an application made for legal aid?

MR HIGGS:  Your Honour, we are told not.

MASON CJ: Not?

MR HIGGS:	No.
MASON CJ:	You have that information from the Commission?

MR HIGGS: That is so, Your Honour, my instructing

solicitors do and we understand also, Your Honour,

and we have not seen the correspondence, that at no

time did the Australian Legal Aid Commission act

for Mr Jago in respect of the appeal. That is to

be found in annexure D to the latest affidavit.

That in the last sentence of the second-last

paragraph to that letter dated 25 June 1990 it is

said that he was not acting for Mr Jago well before

the notice of appeal was filed.

MASON CJ: Yes. Now, what order do you ask for?

MR HIGGS:  Your Honour, we would ask that the appeal be

struck out for want of prosecution or,

alternatively, that the application for special

leave be dismissed, and an order for costs. If

Your Honour pleases.

Jago 4 6/8/90

MASON CJ:  Yes. Mr Jago, you have heard what counsel for

the applicant, the respondent to your special leave

application has had to say. What do you have to

say by way of answer to this application that the

application for special leave be dismissed?

MR JAGO:  Your Honour, I suffered a cerebral haemorrhage; I

almost died. I am not supposed to be here today.

I have a gentleman in the back of the Court,

Mr Barry Marvin Cox, sent down by Dr Stephens to make sure that I do not collapse whilst I am down

here. I have had a fractured sacrum which is the

base of my spine which set crooked and I had to

have it rebroken and set again.	I have supplied
medical certificates with that.	I sat with

Mr Brian Skinner this morning, a barrister who will

go to Court for me if he can get an instructing

solicitor. Mr Barry Cox asked Mr Skinner how much

money he wanted and he said, "You go and find a

solicitor." I have been to Stacks, the law firm; I

have been up to John Dowd's office. John Dowd is

corresponding with the Legal Aid Commission.	I
applied to the Legal Aid Commission.	I was refused

legal aid. I did the whole appeal book myself. I

paid for the fees to the High Court myself and I do

want my appeal to go ahead because I have a point

of law and if I can get the discharge from

bankruptcy I can solve the whole problem.

MASON CJ: But the problem is this, is it not, you do not

seem to be able to secure the services of a

solicitor or counsel?

MR JAGO: Well, I have Brian Skinner. Look, there is a

cheque I sent to Brian Skinner. I picked it up

from his office this morning because he said I

could not get a practicing solicitor.

MASON CJ: But the difficulty is that already a very

considerable delay has ensued since you first filed

the special leave application.

MR JAGO:  I understand that, Your Honour.

MASON CJ: And there must come a time when the matter should

be disposed of.

MR JAGO: But, Your Honour, illness must come into it.

MASON CJ: Yes, we take account of illness but the real

question is when is the matter likely to be ready

for hearing, if at all?

MR JAGO: Well, I have spoken to Brian Skinner today and I

have been to John Dowd's office and John Dowd has

taken it up. He is the Attorney-General. He has

Jago 5 6/8/90

taken it up with the Legal Aid Office and I should

have that resolved in the next week.

MASON CJ:  Have you been told that?

MR JAGO: I have been told that by Ann O'Connell at

· John Dowd's office.

MASON CJ:  Have you been told that by anyone at the Legal

Aid Commission?

MR JAGO:  No, I have not because I have been here ever since

I left John Dowd's office.

MASON CJ: Well, can we accept that you have been told that?

MR JAGO:  Yes, Your Honour.

MASON CJ: Because I notice that you have Mr Sheehan's name

on the application for special leave yet Mr Sheehan

denies that he ever acted for you.

MR JAGO:  That is correct but then at that time when I

printed the book - I had to print the book and I

had applied to Legal Aid. Legal aid was refused

and I appealed and the appeal was refused.	So then
I went and saw John Turner, our local MP.	He is
the member for Myall Lakes.	He got in touch with
John Dowd.

MASON CJ:  Now, another thing I notice is that we were told

that Mr Skinner was going to appear for you today.

MR JAGO:  That is correct, and Mr Skinner rang me last

Friday and said he would appear today.

MASON CJ:  But yet you tell us that Mr Skinner has told you that he will not appear unless he is instructed by a solicitor.

MR JAGO: That is correct. In other. words, he wants a

solicitor to guarantee him the money.

MASON CJ: Yes. Well, Mr Skinner could not have told you

that he was going to appear today if his attitude

has been all along that he requires to be

instructed by a solicitor.

MR JAGO:  On my word of honour he said he would be here

today, Your Honour. I came down on the bus this

morning that left there at 1 am this morning.

MASON CJ:  Now, is there anything else you want to put to

us?

MR JAGO:  No, Your Honour.

Jago 6 6/8/90

MASON CJ: Very well, if you would take a seat.

The Court has come to the conclusion that the

delay that has taken place since this application

for special leave to appeal was filed on 19 June

1989 is inordinate and that that delay is so

considerable that the Court has no alternative but

to dismiss this application for special leave for

want of prosecution.

There have been some mitigating circumstances

in relation to the delay but none the less it has

been gross delay and for that reason the Court has

come to the conclusion that an order should be made

dismissing the application for special leave for

want of prosecution, and that is the order that the

Court makes.

MR HIGGS: If Your Honour pleases. Would Your Honour also

make an order for costs?

MASON CJ:  Yes. Do you want to say anything about costs,

Mr Jago?

MR JAGO:  Your Honour, being bankrupt, all the costs would

go to the Official Receiver. I will lose my home;

I will lose everything that I have and it is just

not fair, Your Honour. There is the letter from

John Dowd. I mean, they are applying to get a

solicitor from Legal Aid and, I mean, like, what do

you fight for the country for?

MASON CJ: Yes. Well, I am only interested in hearing what

you have.· to say about costs .

MR JAGO:  I cannot pay any costs, Your Honour.

MASON CJ: Very well, there will be an order that the

respondent to the motion for dismissal for want of

prosecution pays the costs of that motion and the

costs of the application for special leave to

appeal.

MR HIGGS: If the Court pleases.

AT 5.09 PM THE MATTER WAS ADJOURNED SINE DIE

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