Kaplan v Archer

[2007] HCATrans 636

[2007] HCATrans 636

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M37 of 2007

B e t w e e n -

MAX KAPLAN

Applicant

and

MATTHEW LEE‑ARCHER

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 NOVEMBER 2007, AT 9.04 AM

Copyright in the High Court of Australia

HAYNE J:   The applicant was convicted in the County Court of Victoria of 53 counts of theft from his then employer. Upon the applicant's conviction the respondent, who had been a fellow employee of the applicant, sought an order under s 85B of the Sentencing Act 1991 (Vic) that the applicant pay the respondent compensation for psychiatric injury the respondent alleged he had suffered as a direct result of the applicant's crimes. The primary judge ordered the applicant to pay the respondent $40,000 compensation. The applicant's appeal to the Court of Appeal of Victoria against that order was dismissed. He now seeks special leave to appeal to this Court. His application for special leave is made out of time.

The applicant seeks special leave to appeal on two bases.  First, he submits that he did not receive a fair hearing of his appeal to the Court of Appeal because one judge who heard that appeal (Buchanan JA) had participated in the hearing of his appeal against conviction.  Second, the applicant challenges the finding made at first instance, and not disturbed on appeal to the Court of Appeal, that the respondent's psychiatric injury was directly caused by the applicant's offences.

We are not persuaded that it is arguable the participation of Buchanan JA in the two appeals constituted any want of procedural fairness.  The second issue which the applicant seeks to agitate in this Court depends in critically important respects on the particular findings of fact made at trial and not disturbed in the Court of Appeal.  No question of general principle would fall for consideration if special leave were to be granted.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.  I publish that disposition.

AT 9.05 AM THE MATTER WAS CONCLUDED