Kay v Law Partners & Ors

[1998] HCATrans 322

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M90 of 1996

B e t w e e n -

IAN KAY

Applicant

and

LAW PARTNERS

Respondent

Office of the Registry
  Melbourne  No M91 of 1996

B e t w e e n -

IAN KAY

Applicant

and

PIESSE CLAREBOROUGH

Respondent

Office of the Registry
  Melbourne  No M92 of 1996

B e t w e e n -

IAN KAY

Applicant

and

SLATTERY & CO

Respondent

Office of the Registry
  Melbourne  No M93 of 1996

B e t w e e n -

IAN KAY

Applicant

and

GALBALLY, FRASER & ROLFE

Respondent

Applications for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 SEPTEMBER 1998, AT 1.59 PM

Copyright in the High Court of Australia

_____________________

MR I. KAY appeared in person.

MR A.J. McINTOSH:   May it please the Court, I appear for the respondents in the first three of the applications.  (instructed by Deacons Graham & James)

MR O.P. HOLDENSON:   May it please the Court, I appear in the fourth matter on behalf of the respondent.  (instructed by Arnold Bloch Leibler)

GUMMOW J:   Yes, Mr Kay.

MR KAY:   I presume your Honours have read my application.

GUMMOW J:   We have, yes.

MR KAY:   Well, I think it is absolutely a disgrace that I have been prevented from having justice as a result of being railroaded into gaol on a trumped-up charge of sending letters to my ex-wife, pleading with her to unite me with my children again.  The charge of stalking was eventually dismissed.  The magistrate was compelled to dismiss this charge.

Obviously, there was a conspiracy between my ex-wife’s solicitor and the respondents and the police to railroad me into gaol to wipe out my writs.  In addition, application was made that my wife receive compensation as she was living in fear as a result of receiving a letter allegedly from me enclosing a copy of the Port Arthur massacre.  I refute ever enclosing that article at all.  This was a conspiracy between my ex-wife and her girlfriends in full connivance with the police to justify them denying me bail.  It was with the intention to wipe out my writs.

Now, I am now writing letters which every politician will receive:  “What sort of justice is this?”  I received eight months gaol for writing letters - no violence, no threats of violence.  The restraining order has been enforced against me now for four years.  There has never been an insinuation of violence.  Judge Kelly - - -

KIRBY J:   I think there was an order, was there not, of the Family Court restraining you from making any - - -

MR KAY:   No, the Magistrates’ Court has that order.

KIRBY J:   The Magistrates’ Court then.

MR KAY:   Judge Kelly previously had dismissed all the charges against me after I had been proven guilty in the Magistrates’ Court - - -

GUMMOW J:   We understand all that, Mr Kay.

MR KAY:   I just want to give you a background, please.

GUMMOW J:   We do not decide it on background.  We have to decide it ‑ ‑ ‑

MR KAY:   I will be as quick as I can.

GUMMOW J:   All right.

MR KAY:   Judge Kelly had already dismissed the charges when he said, “Where are the photos of Mr Kay chasing you through the town.  I have seen the photos of him demonstrating peacefully seven kilometres from the town when he was barred from approaching you.  Where are the photos of him chasing you through the town.”  She said, “We haven’t got any.”  Judge Kelly dismissed the charge without even bothering putting me in the witness box.  He saw through it.

He also dismissed the charges that I had breached the restraining order because - one of the charges - I was not informed where my wife was living.  How could I comply with the order.

Now, I received eight months gaol for sending letters.  This man molested 27 children and he walked free from his trial.  I am going to be knocking on the electoral office doors of every politician, or as many as I can in Melbourne any way, and demanding an answer to that question.

GUMMOW J:   That is right, Mr Kay, but you will have to explain to us ‑ ‑ ‑

MR KAY:   I will give you some idea why I am so angry.  I have not seen my children for five years, and this is the type of corruption that is stopping me - and fully accepted by the judiciary - that is preventing me from seeing my children.

GUMMOW J:   No, Mr Kay, we are not sitting here to listen to that sort of allegation - - -

MR KAY:   Right. 

GUMMOW J:   - - - which does not help your case.  You have to try and explain - - -

MR KAY:   If I can mention this point, if I may - just one point I want to mention.

GUMMOW J:   Just please listen to me for a minute.

MR KAY:   This - - -

GUMMOW J:   Please listen to me for a minute.

MR KAY:   Sorry.

GUMMOW J:   We have to have explained to us, and that is why you are here, and we know the emotional circumstances about it all.

MR KAY:   It is not emotional, it is the truth of what has happened.  I just want to give you a background of the corruption that has led to be being gaoled and denied my children.

GUMMOW J:   No.  Look, just listen to me, please, as a matter of courtesy, and we are offering you courtesy.  We have to be persuaded that the Court of Appeal committed an error in principle of law in their judgment of 6 December 1996.

MR KAY:   Yes, well, I understand.  I am working towards that.  I just want to outline - - -

GUMMOW J:   Well, there is a limited amount of time and I am urging you to use your limited amount of time to the best advantage.

MR KAY:   Thank you for the advice.  I also want to know why I was denied bail over trivia while Simpson, Craig Simpson, who kicked a child in the head, fractured his skull, faced 27 charges and was granted bail.  Now, what I am outlining is that there is corruption - judicial corruption why I have been denied my children, why I have been railroaded to gaol. 

On 18 October 1995, I wrote a letter to every politician outlining what has been done by the Family Court and how decent men are suffering; how children are suffering as a result of being denied their fathers’ protective shield.  I was misquoted by a politician.  It hit the front page of “The Age” and - - -

KIRBY J:   Mr Kay, can I suggest that you take Justice Gummow’s advice.  We are really only concentrating on the Court of Appeal decision.

MR KAY:   Yes.

KIRBY J:   You have to show a mistake in that.

MR KAY:   I will get to that point very quickly?

KIRBY J:   We understand you are very upset and emotional but we are trying to concentrate on our job which is to see whether there is any error in the Court of Appeal decision.  So, could you concentrate on the - - -

MR KAY:   What I am trying to convey is that there is political reasons ‑ ‑ ‑

KIRBY J:   We know all that.  We know all that but what is the error of Court of Appeal that you are coming here for?

MR KAY:   Why pressure has been put on magistrates and judges to railroad me.  Now, what happened was, as you are aware by my application, that I was in gaol at the time the respondents tried to force me into court to run my claim - my writ.  Obviously, any thinking person could see I could not possibly run my writs while I am in gaol.  Firstly, I did not have the material and I was not in a position to call witnesses.  It was impossible for me to run the writs while in that situation.  My sister contacted the Supreme Court and the County Court advising them when I am out of gaol I will proceed with the matters and for a temporary adjournment.  She contacted the court by phone and she contacted both courts in writing.  So did I.

The County Court accepted the fact that I could not run the case I have against the police for malicious prosecution from gaol and they adjourned the case.  However, Judge Beach decided that I was a vexatious litigant abusing court processes by not attending court from the gaol.  I claimed the very reverse of the truth, is a system that is abusing the court processes and causing me to be denied my children and railroaded.  Despite not one allegation of violence, I cannot remove a restraining order enforced against me.

KIRBY J:   But what do you say about the suggestion in Justice Haynes’ judgment in the Court of Appeal that arrangements were made for a gaol order to require the production of you to the court and that you chose not to take advantage of the opportunity to appear before the court?

MR KAY:   Would you just repeat the first part of that, please?

KIRBY J:   I say what do you say, in relation to the passage on page 13 which is on page 3 of Justice Hayne’s reasons, that arrangements were made for a gaol order to have you presented to the court and that you chose not to turn up?

MR KAY:   That is an example of blackmail.  I was being blackmailed.  I was told by Galbally Solicitors or their representatives that, “If you do not wish to proceed with the matter, we will withdraw our application to have you brought to Pentridge to attend court.”  I would say that was blackmail.

KIRBY J:   You had commenced proceedings and arrangements were being made for you to come and present your case in court.

MR KAY:   I could not, I was in gaol.

KIRBY J:   Yes, but arrangements were made by a gaol order for you to come along and present the case.

MR KAY:   What would have been the point, going to Pentridge and going to court completely unprepared to run my case?  This is the very point I have made from the beginning.  It would have to be adjourned until such time that I could prepare my case properly.

KIRBY J:   You could have made that application to the Master in person and then the Master would have decided that on its merits.  Instead, you chose to stay away hoping the matter would be adjourned and it was not.

MR KAY:   No, I had already advised the court.  I had already advised - and my sister had advised the court for the matter to be adjourned.  We had already applied to have - - -

KIRBY J:   In this country, arrangements like that are not made by telephone.  You have to go up to the court and make arrangements.

MR KAY:   They were in writing.  My sister and I wrote to the courts, the Supreme Court and the County Court, for all matters regarding the case - my writs to be adjourned.  The County Court accepted my letter and my sister’s letter but the Supreme Court did not.  So, we have two jurisdictions.  One is contradicting the other.  One must be completely right and the other must be completely wrong.

KIRBY J:   It is up to each court to decide what they will do with an application.

MR KAY:   Yes, it is up to each court but it seems strange that one court, the County Court, would fully support my claim that it was impossible to run my case from goal, or the other court claimed it was possible.  There is a complete clash of jurisdiction.

KIRBY J:   It is not a clash, it is just a different response in the particular circumstances by each court.  You had an opportunity to turn up in the Supreme Court and you declined the opportunity.

MR KAY:   It was impossible for me to run a case as I had no paperwork.  Most of my material was in storage in Queensland.  I advised - as you can see, I advised the respondents’ legal representatives of that fact.  I advised the court.  I cannot see why one court would unanimously agree with me while the other one would say, “No, you should be in court.”

KIRBY J:   Well, it is a discretionary matter and this Court has to be convinced that there is some serious error of principle before it would dream of intervening in a matter which has gone to a master, to a judge, and to the Court of Appeal of this State.

MR KAY:   Yes, but it did not go to the Court of Appeal on that basis.  At that stage it went before the Master I was in gaol.  I could not run the case.  It should have gone straight - right back to square one, the very first incidence where I was denied justice by the case being run in my absence.  I do not believe you can possibly run a case in the absence of the plaintiff if he is in gaol.

KIRBY J:   Well, you are coming along to tell us this.  We are the highest Court in this country and the busiest.  What you should have done was to have turned up in the Supreme Court and made those statements to the Supreme Court.  Maybe you would have succeeded.

MR KAY:   I had already made it very clear in my letter and my sister spelt it out very clearly too.

KIRBY J:   In this country decisions of courts are not made on letters or phone calls.

MR KAY:   Irrespective, I am being denied justice the same way as I am being denied my children because of legal technicalities which I do not think is in the interest of justice.  I have warned politicians continuously.  Kennett even sent the police down to the gaol where I was held because he was upset by a letter I wrote to him from the gaol, “Unless you are going to do something about the absurdity of the Family Court and the restraining orders which are leading to decent men being denied their children and leading to children being bashed and murdered because they are denied their father, their natural father’s protective shield, there is going to be a violent reaction from people like me.”

Now, it upset Kennett so much that he sent the police down to the gaol.  He has got good reason to be upset because I am a very angry man.  Recently my father died.  I applied seven times to the Family Court advising them that my children’s grandfather was ailing and each time they ignored my application.

KIRBY J:   That is not a matter that is before us.

MR KAY:   This is typical of the legal tactics and the attitude of the judiciary, the callous attitude is going to lead one day to a violent reaction.  I have not seen my children for five years.  Not one allegation of violence has been insinuated.  So, clearly, there must be legal tactics and judicial corruption behind that fact.

GUMMOW J:   No, we do not sit here to listen to the general comments about judicial corruption.

MR KAY:   It is the truth, irrespective.

GUMMOW J:   Well, you say it is.

MR KAY:   Well, I can show you - - -

GUMMOW J:   Do you really expect us, on this application, to enter into that sort of question?  It is not what we are here for.  Justice Kirby and myself have both invited you to give your attention to the judgment of the Court of Appeal of 6 December.  That is all we have here.

MR KAY:   I realise that is the situation.

GUMMOW J:   If we went down that we would be doing wrong.  Now, that is all we have.

MR KAY:   I feel that they have erred in law because I have been denied natural justice.  Irrespective of the technicalities which might be used against me, I think any thinking person and fair-minded person would say, “This man couldn’t have possibly defended himself correctly, being brought from gaol”, and that is the crux of the matter.  I think that the method that was applied and the tactics that were used by the respondents’ solicitors are disgraceful.

KIRBY J:   Can I ask you, just so that I will understand what you are saying to us, that you say the Court of Appeal made an error because it sanctioned a procedure that, in effect, though you were in prison and in custody and at a great disadvantage to present your case, and although the respondents knew that you were asking that the case be stood over until you were out of custody, when a litigant in person you could present the case properly, that you were, in effect, forced on by their insisting that the matter go ahead at that time and by their making arrangements for a gaol order to bring you to the Master to ensure that the matter went on there and then at their convenience, rather than at a time when you could properly present your case?

MR KAY:   Exactly.

KIRBY J:   And that it was not unfair to you that the matter should have been adjourned and that the issue which is raised by your case which has not been addressed by the Court of Appeal is that it was unjust in the circumstances to force you on and that that ought to have been corrected by Justice Beach and ought to have been corrected by the Court of Appeal?  Whatever the merits of your case, you should have had the chance to put it fairly as a person who was not in custody and under that disadvantage?

MR KAY:   That is precisely - also I am surprised that Judge Beach did not castigate the solicitors for the respondents for applying for a gaol order.  As I understand, a gaol order can only apply in a criminal matter.  This is a civil matter.

KIRBY J:   Yes, but as I understand it, the gaol order was made and it would have permitted you to be brought to the court but you elected not to come.  So, the question is whether that election, which would have allowed you to put the sort of arguments that you are putting now to us in the High Court of Australia to a master, is something you ought to have done there and then instead of coming along and troubling us years later and after two other levels of appeal.

MR KAY:   As a lay person, I thought I acted correctly.  I thought I could do little more than advise the court of my impossible situation, and this was accepted by the County Court.  I do not think I should be penalised on technicalities because I am lay person.  I ask the question:  is it possible to obtain a gaol order over a civil matter?

KIRBY J:   Do not worry whether it ought to have been made, apparently it was made and you could have turned up and you could have said to the Master, “I’m at a great disadvantage.  I really can’t present the case.  I don’t have the papers.  I don’t have advice, and I’ve got to do the best I can.  I ask for an adjournment, and there is no skin off the nose of the respondents if it is adjourned for a short time until I come out of prison.”  Now, you could have done that and you did not do it.  You elected not to do it.

MR KAY:   Clearly, the solicitors acting for the respondents were in error by law if it is true that it is not possible to get a gaol order over a civil matter.

KIRBY J:   You are concentrating on an irrelevant matter.  If the gaol order was made and you could have turned up and you elected not to do so, that is the essence of it.

MR KAY:   At that stage I thought the case was going to be run.  I did not realise it was just an appearance.  I thought the case was going to be run when I was brought from the gaol.

KIRBY J:   Is not the inference that you thought that by not turning up at court, that by your own election you could control the proceedings and prevent their going on?

MR KAY:   Primarily in mind was I thought that the case was trying to be run - clearly the respondents’ solicitors were trying to force me to go from the goal to present my case, completely unprepared, in very poor circumstances.

KIRBY J:   Yes, but you presented a case to the Supreme Court and if you had - you presumably thought you had a case and they are entitled to have the matter dealt with as quickly as possible and not simply hang around at your convenience.

MR KAY:   I do not think it was my convenience of being in gaol for writing letters to see my children.  I am going to be demanding an answer from the politicians in the strongest terms that how I could possibly be gaoled and denied bail over such trivia while someone like this could molest 27 children and walks scot-free.

KIRBY J:   As Justice Gummow has told you, that is not a matter before us, but I think I have explained, as I hope, fairly, what your case is.  Have I put to you and you have agreed that the point you want to make in this Court is the point that I put to you, is that correct, in relation to the Court of Appeal?

MR KAY:   The point is that I was under the impression that the case was going to be run.  I said, “I’m not going to run the case.”  I made it very clear I cannot run it.  I thought that the opposition was taking advantage of my position, and I sincerely thought that, and on that basis I am being wiped out on a technicality.  I do not think I should be in those circumstances.  I feel as a lay person I should be given the benefit of the doubt and if I was wrong - I was not acting in any form of incorrectness towards the court.  I thought I was acting in sincerity and I do not think this has been the case of the respondents’ solicitors.  They have just been abusing court processes to wipe out my writs, the same way as court processes have been used and abused to keep me from my children, the very same tactics, too eagerly accepted by the judiciary.

Quoting from the respondents’ summary of argument, from (viii) to (xii), I could not comply, as I have stated clearly, when I was in gaol at that time.  I also have writs against four members - - -

GUMMOW J:   Just pardon us a minute, Mr Kay.  Yes, Mr Kay.  Now, you have seen the yellow light.

MR KAY:   Yes.  While I was in gaol - - -

GUMMOW J:   Just take a minute to collect your final thoughts.

MR KAY:   I will need more time.  While I was in gaol I spoke to the staff of the warder’s office and I said, “I’m in here as a result of being denied my children.”, and they said, “You’re in here as a result of upsetting some important people.”  So, they knew there was political risks behind it.  The gaol staff knew it.  It is inhuman, unnatural for me to be denied my children and my children to be denied their father.

KIRBY J:   You keep saying that but we do not have the case from the Family Court here before us.  So, it really is a waste of the precious time ‑ ‑ ‑

MR KAY:   I might add it has already cost the Australian taxpayer over $300,000 to keep me from my children, to railroad me.  It is going to cost a lot more.  I think my submission covers much of what I have to say.  It covers it completely, I suppose.

KIRBY J:   We have read the submissions.  We have a few questions to ask of the respondents, so - - -

MR KAY:   Can I question them?

KIRBY J:   No.

GUMMOW J:   No.

MR KAY:   As long as I finish, that is my submission?

KIRBY J:   That is it, and the red light is now on.

MR KAY:   All I can say in summary, if I can, is that for me not be able to proceed with my writs is going to create a precedence in the future.  If somebody takes out writs against the system, politicians, solicitors and the police, all you have to do is railroad them into gaol and that will wipe out the writs.  I think it is a very dangerous precedent to establish.

GUMMOW J:   Yes, Mr Kay.  Mr McIntosh.  Is there any agreement between you and Mr Holdenson who should go first?

MR HOLDENSON:   My learned friend is closest to the lectern.  I have not problem - - -

GUMMOW J:   Yes, all right.  Yes, Mr McIntosh.

KIRBY J:   What was the problem with the matter being adjourned?  Apparently the applicant had sent a letter and had a phone call made and he was at a disadvantage being a person in custody.  What was the problem with not simply standing the matter down?  The impression that he suggested is that you forced the matter on.

MR McINTOSH:   With respect to the telephone call that your Honour mentions, I do not necessarily accept that there was a telephone call.

KIRBY J:   But it was known by the Master and by the subsequent judges that he was in custody and that would put him at a great disadvantage in presenting his case.

MR McINTOSH:   Necessarily, your Honour, in this application that was before the court at the time, it was not the trial of the proceeding, what it was was an application to strike out the statement of claim and dismiss the proceedings, being abuse of process and, of course, the affidavit material that had been filed originally before the Master just went to the timing of the technicalities.  There was no material actually addressing the cause of action.

KIRBY J:   That is true, but just put yourself in his shoes.  He is in custody; he does not have a lawyer; does not know the principles; has no knowledge about how to present the case; does not have papers; does not really have an opportunity to prepare himself, and then he is dragged in on a gaol order to answer an application by represented people to strike out process which, rightly or wrongly, is very important to him.  Now, why was it so urgent that the matter should press on at that time?  I just want to understand why it had to go on at that time.

MR McINTOSH:   Necessarily, your Honour, with respect to this matter - and there is some detail in the affidavit of my instructing solicitor that was before the Master - this was part and parcel of a number - the three matters of which I appear for the respondents today were part and parcel of a number of other applications and causes of action.

KIRBY J:   I realise the background.  In a sense, the poverty of strength in the case is a reason why it should be handled and dealt with with manifest fairness and I am just a little concerned.  I need your help on why it was so important to you that the matter should - because there may be an explanation - press on that day although the present applicant was in custody and would have to come from gaol unrepresented to respond to your submission?  Why could it not have stood over for a period?  Why would that not have been the proper exercise of discretion in the circumstances?

MR McINTOSH:   With respect, I think the proper exercise of discretion was based upon necessarily the chronology of all of the four applications that were before the court.  There were numerous adjournments, certainly in respect of the other respondent, the fourth respondent’s proceeding which I do not ‑ ‑ ‑

KIRBY J:   Was that at a time when the applicant was at large?

MR McINTOSH:   I understand the applicant was at large.

KIRBY J:   How long was his sentence?  What would the adjournment have been if it had to be stood over until he came out of custody?

MR McINTOSH:   As I understand it, it was a matter of - he was seeking bail with respect - - -

KIRBY J:   I realise that, but just assume the very worst, that if it had to be stood over, a strike out application on a writ that was going nowhere until the application was disposed of, until he came out of custody?

MR McINTOSH:   As I understand it, the sentence was eight months.

KIRBY J:   Eight months, and how much had he served at the time it was heard by the Master?

MR McINTOSH:   I think he went into custody in June of that year.

KIRBY J:   So, how much more would it have been?

MR McINTOSH:   Another six months.

MR KAY:   Just a few days, your Honour.

KIRBY J:   Just a moment, you have a right to reply.

MR McINTOSH:   As I understand it, there was application after application to get that discharged and bailed.  I am not quite familiar with the criminal circumstance, but as I understand - - -

KIRBY J:   If it were a few a days, as we have just been told, that really would seem to be a wrong exercise of discretion to force the matter to a hearing in the absence of a person who is in custody and who, really, is not disadvantaging you greatly.  The writ cannot go anywhere until your process was dealt with.  I may not be understanding something.  I am not against you and I realise there was a background but I do want to understand the position as it was when the Master got it, because everything has flowed from there.

MR McINTOSH:   Yes.  With respect to the application which my clients made in this case, the first return date of that was 1 August.  It was then adjourned to 9 August and that is when the orders with respect to two matters were dealt with.  The final matter, the Piesse Clarebrough matter, came on on 18 September.  So, you are now talking about a period of six weeks between the first decision and the second one that was ultimately appealed from.  Now, as I understand it, again, the applicant was in custody at that time.  But the short answer - - -

KIRBY J:   He says this is oppressive.  He says this was done to oppress him and to disadvantage him though he was a prisoner and could not really represent himself effectively.

MR McINTOSH:   Yes.  The short answer to that is that when the matter came on before his Honour Mr Justice Beach in October, the applicant did appear at that appeal and, of course - - -

KIRBY J:   Is that by way of rehearing?

MR McINTOSH:   It is a hearing de novo.

KIRBY J:   Justice Beach can substitute his exercise of discretion.

MR McINTOSH:   Indeed, your Honour.

KIRBY J:   The applicant was present before him.

MR McINTOSH:   He was present at the time.

KIRBY J:   Argued his case and Justice Beach reached the conclusion that the writ should be struck out.

MR McINTOSH:   Yes, agreed with the Master below for the reasons the Master addressed in his reasons.  Now, with respect to that matter, the matter was then appealed to the Court of Appeal and, again, the applicant had the opportunity of presenting those arguments - - -

KIRBY J:   That would not be by way of rehearing?

GUMMOW J:   No.

KIRBY J:   That would be by correction of Justice Beach.

GUMMOW J:   Your real point is the judge in the Practice Court could look at it afresh.

MR McINTOSH:   Yes, indeed, your Honour.  I do not - - -

GUMMOW J:   Yes, thank you, Mr McIntosh.  Yes, Mr Kay, there was something you wanted to say?

MR KAY:   Could I approach the Court to clarify a matter, please.

GUMMOW J:   Yes.  There was something you wanted to say.

MR KAY:   The respondents’ solicitors were very aware that there was a four months suspended sentence and they were very aware that I was to be released from gaol on 9 October which was only a few days late after - I have forgotten the exact date of the gaol order.

KIRBY J:   Well, they have answered that by saying that the matter then came on before Justice Beach on your application.

MR KAY:   In October - - -

KIRBY J:   Yes, and Justice Beach was in the position of rehearing the whole matter.  You were not then in custody.  You were out of custody.  You appeared before his Honour.  You were able to put your case, and his Honour dealt with the matter on its merits and that, therefore, all that had gone before, whether you got a good or a bad complaint about it, is irrelevant.

MR KAY:   Yes.  Well, that - - -

KIRBY J:   What is your answer to that?

MR KAY:   Well, that is true but the point is that I have been denied justice to run my cases.

KIRBY J:   No, you were not.  You got your chance before Justice Beach.

MR KAY:   I would have been given the opportunity to amend my statement of claim.  Justice Beach claimed that I was a vexatious litigant and abusing court processes.  I am claiming the very opposite is the truth, that I am the victim of court processes to wipe out my writs.  I should have been given the opportunity to amend my statement of claim.  I was given that opportunity by Master Wheeler before I was incarcerated.  I was not able to amend my statement of claim because I was in gaol and much of the material was in Queensland.

GUMMOW J:   Yes, thank you, Mr Kay.

MR KAY:   Excuse me, can I approach the board again, please.

GUMMOW J:   Just a minute.  Yes, Mr Kay?

MR KAY:   I have also been given the opportunity of four chances now to amend my statement of claim against the politician, Sue Wild.  That case was also - - -

GUMMOW J:   That is not a matter here, Mr Kay.

MR KAY:   Can I just explain that I have been given the opportunity.  That matter was adjourned and that matter is proceeding through the Supreme Court in the normal fashion.

GUMMOW J:   Yes, Mr Kay, thank you.

GUMMOW J:   These are applications for leave to appeal from the judgment of the Court of Appeal, Victoria, delivered on 6 December 1996.  The Court of Appeal refused leave to appeal against orders made by the Practice Court.  The Practice Court dismissed applications for leave to appeal from orders made by a Master.  The Court of Appeal did not accept that there had been any denial of procedural fairness by the judge in the Practice Court.  The judge in the Practice Court was dealing with the matter by way of review on the merits.  Accordingly, the applicant’s arguments as to what transpired in the Master’s Court cannot be decisive on the present applications made to this Court.

There is disclosed no error of principle by the Court of Appeal which would attract a grant of special leave in this case and, accordingly, special leave is refused.

MR McINTOSH:   I seek costs of today, your Honour.

MR HOLDENSON:   An application is also made for the costs of the proceedings, your Honour, albeit there will have to be some discussion in so far as the application was made on the last occasion under the Federal Proceedings Costs Act.  Your Honour may well recall that an application was made under that Act in circumstances where, effectively - - -

GUMMOW J:   Those applications are not dealt with by the Court itself.

MR HOLDENSON:   If the Court pleases.

GUMMOW J:   Yes, I think we have to make an order for costs, Mr Kay.
Dismissed with costs.

AT 2.31 PM THE MATTER WAS CONCLUDED