Keating v Woods

[1994] HCATrans 432

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TRANSCRIPT

.... - Law Courts Building

OF PROCEEDINGS "'t"""'t"" 1 Victoria Avenue
Perth WA 6000

AUSCRIPT	GPO Box 9955 Perth WA 6001
Phone [phone] Fax [phone]

IDGH COURT OF AUSTRALIA

TOOHEY J

No P 9 of 1994

OISIN GEOFFREY KEATING

and

SAMUEL JOHN WOODS and ANOTHER

tineen 16.8.94 1

PERTH

10.34AM, TUESDAY, 16 AUGUST 1994

ms HONOUR:  Mr Keating, you appear in person, do you?

:MR O.G. KEATING; Yes, your Honour.

ms HONOUR: Yes. Thank you.

:MR, KEATING:  And my application is a summons for directions and

5           since parties I have ·summonsed_have not ap~eared I have changed my

~- mind to my application in relation to the summons for directions. What
I now ask for is either a stay gf the proceedings fgr the application for
special leave to appeal and instead to bring an action in the High Court

- in relation to the Supreme Court action on much_ the same grounds.

io ms HONOUR: Well, let us jnst have a look at this, Mr Keating. It

presently is_ before the court in this matter, an application for special
leave. to appeal from a judgment of Owen J in the Supreme Court,
accepting that part of the judgment which granted leave for you to file a
reply. There are also two summonses for directions; one which has a

15           filing date of 29 June this year and the other which has a filing date of 1 August. Now, on its face at anyway, the second of those summonses seems to be by way of substitution for the first. Have I understood that correctly?

MR KEATING:  Well, the substitution were to be used together. It

20           was clarification, I think, the second one to some extent.

ms HONOUR:  Well, each seeks directions to be given. It just seems

to me they cannot really stand together - - -

MR KEATING:	Well, in one sense, yes, suppose that is right.
ms HONOUR:	But on the other hand you may be wanting to dispense

25         · with both applications, from what you have just said.

MR KEATING:  Well, ves, that is correct.

ms HONOUR:  So are you saying, in effect, that an order dismissing

each of those summons for directions at your instance would be

appropriate?

30 MR KEATING: Well, I was preferring if the application for special

leave, if it could either be stayed - - -

ffiS HONOUR:  Well, it does not have to be stayed in a sense really,

you have initiated it.

tineen 16.8.94 2

MR KEATING:  Well, yes. What I would prefer to do now is to

commence an action in the High Court where the Commonwealth is a
party in relation to the failure to provide treatment to me under a
regional hospital and negligence in relation to the doctor I was suing in

5           the Supreme Court.

ms HONOUR:	Yes. I understand that but - - -
MR KEATING:	I have been able to get nowhere in the past 2 years.

,

ms HONOUR:  11.tst let me stop you for a moment. The file will

become somewhat unmanageable if there are series of processes which

10           are not really to be pursued but which still remain on the file.

MR KEATING:  Well, yes, I appreciate that but I think that the action

would dispense with everything.

ms HONOUR:  Well, it may or it may not. It would be a separate

file I would think.

15 MR KEATING:  Yes. I know. I know that it creates work and I am

not really seeking to do that. I am frustrated - - -

ms HONOUR:  Well, I am not concerned about work; I am concerned

about the confusion that may be generated by the existence of a whole
series of applications on the file where, on the face of it, one appears to

20           overtake the other and they both remain there while some other process, which seems to be at odds with what has already been sought, is pursued. Now, there is no suggestion - at least no suggestion from me - that the application for special leave to appeal, that anything need be done about that as an application.

25 MR KEATING:  Yes. If I wished to proceed by way of an action on

similar grounds to the action in the Supreme Court from which I am

action?	seeking special leave to appeal would you allow me to bring such an
ms HONOUR:	Well, that is a very difficult question to answer

30           because I do not know what the content of it is and there is already another matter, which I was going to raise with you, where you sought to issue a writ against the Commonwealth - - -

MR KEATING:	Yes. Well, I did actually bring that but - - -
ms HONOUR:	Well, let me just finish. An order was made by

35           Deane J directing the registrar to refuse to issue that process without the

tineen 16.8.94 3

leave of the court. You were told, I think, by the registry that a
summons seeking leave to issue that writ could be heard today but the

file indicates that no such summons has been filed.

M.R KEATING:  No .

~ 5	·ms HONOUR: . I am not clear, when yo4 speak of an action against
L"le Commbnwealth, whether you are talking about the action that you
have alr~ady sought to bring and which has been the. subject of this
order or whether ybu are talking about scme different action cl together.

.

M.R KEATING:  This would be an action similar to the one in the

10           Supreme Court, the only difference would be that I would have joined the Commonwealth as a defendant and the reason for doing that would be for the failure to treat me in a critical condition in Bunbury Regional

Hospital as the Health Insurance Act 1973 required.

ms HONOUR:  Well, ~s I think you appreciate, there is a provision in
15	which someone wishes to initiate is vexatious or oppressive or

the High Court rules that if it appears to the registrar that the process matter to a judge of the court and the judge looks at the papers and if on its face it seems to fall within the rules well then an order would

20           ordinarily be made, leaving it open to the ~rson seeking to bring the action then to issue a summons for leave to bring those proceedings. That seemed to me to be what was caught up in this other file but strictly speaking it is not before me today because there is no summons for leave to issue.

25	MR KEATING:  Yes. Well, could you clarify then, since the
summons that I did file and it was refused to be filed - I mean I can see there are some reasons that there would be objections that I would not include in a new writ and it would be very much what is similar to the Supreme Court action, and there is a copy on the file of that - of the

30           statement of claim. I have not been able to get a satisfactory defence

and I have got nowhere in 2 years. I have not been able to get

discovery. I have filed a notice of appeal - - -

ms HONOUR:  You see when you say that you are ta.king me back

into the area of the State Supreme Court action, I am trying to identify

35            each of these matters and point out to you where you stand in relation to them. The Supreme Court action is still on foot, is it not?

M.R KEATING:  Well, actually it has been dismissed, and it was

dismissed in my absence and it was dismissed, I believe, without
jurisdiction of a Master. He dismissed it on the ground that it was

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statute barred and I understand that a Master does not have the

jurisdiction to make that decision.

ms HONOUR:  Well, that is another matter altogether which no doubt

you have got to consider, but can I just stay with what is before me at

5           the moment. I have a file which is a file commencing with an application for special leave to appeal from the order of Owen J. Strictly speaking, that is the only matter that I have before me at the momept. Now, in that file there are two summonses for directions, the two that I mentioned to you, which seek to bring on the application for

10           special leave to appeal without complying with the ordinary procedures of the court.

And, on the face of it, there is no reason why such an order should be made; in other words, I can see no reason why your application for special leave to appeal should not follow the procedure laid down in the

15 rules. If you are represented there are certain procedures; if you are

unrepresented there are other procedures by way of written submissions. hurdle. There is just no reason why the court should depart from the ordinary procedures that every litigant follows.

20 ::MR KEATING:  Yes. However, I indicate that I do not wish to follow

that path at this time.

ms HONOUR:  Well, it is the "at this time", you see. I would see no

reason why I should not dismiss both of those summons for directions
which leaves your application for special leave to appeal on-foot if you

25           later want to do something about that, but it at least frees this matter from, it seems to me, unnecessary complications.

::MR KEATING: Yes. I see. Would my application for special leave to appeal that is on file at the moment prevent me bringing in an action on similar grounds to the action that I am seeking the leave for?

30 ms HONOUR: Well, that is not a question I am prepared to answer

because you are raising a whole question of relationships between
actions and inviting me really to advise you on matters of law which is

not my province.

::MR KEATING:  If I file a summons would it be refused simply

35           because I have that on file, the application for special leave, on that ground alone?

tineen 16.8.94 5

ms HONOUR:  Well, again, I am not prepared to answer that because

it would need consideration of all the maµers raised by the application

for· special leave to appeal.

[10.46am]

5           lv1R KEATING: Yes. If I did actually m&}(e an application and it was refused, would there bt:.. any way of me finding out why it was refused?

. ....

ms HONOUR:  Well, you already have an, order of the court that

process not be issued without leave .

~

:MR KEATING: . But it would be a substantially different writ.

, 10 ms. HONOUR: Well, I think if you propose to take. that action, you

simply have to follow whatever course you think is appropriate and meet
whatever difficulties there are as they arise, Mr Keating. It is just not
possible or even appropriate for me to try to advise you on where you
should go. My concern at the moment ~s that I have an application for

15           special leave to appeal, which I am not being asked to deal with as such. What I am being asked 10 deal with, on the face of it, is to give directions for the hearing of that application.

As I said to you, I can see no basis for allowing this application for special leave to appeal to .depart from the ordinary procedures which the

20           rules contemplate. So that on its face and unless there is anything else that you can offer me, I would propose to dismiss both summonses for directions. But that leaves your application for special leave to appeal as a process that is still on file.

:MR KEATING:  Yes. It is still on - - -
25	ms HONOUR:  Now, where you go from there is really a matter for

you, I think.

:MR KEATING:  Yes, being unrepresented is not easy.

ms HONOUR: No, I understand that, but at the same time you have to appreciate that a justice of the court, doing the best that can be done,

30           cannot start advising you as to where you stand in relation to matters that you may or may not bring.

:MR KEATING:  I will certainly be attempting to file a writ of

summons very soon, and it would be on the same, or very similar
grounds to the Supreme Court Action. What I cannot establish when I

35           am inquiring at the counter of the office of the registry, why they are so reluctant to help me. I mean, I understand that if the writ is not

tineen 16.8.94 6

acceptable to a justice, that is a decision that is made, but if I can not find out reasons for the decision, it causes me problems. If I was to bring a similar writ to the one in the Supreme Court, I could see that there should be no reason that it would not be filed, but if it has been

5           considered reasonable for 2 years in the Supreme Court, I would have thought that it could not be considered frivolous, vexatious or an abuse of the processes ·of the court.

The problem is that if I do actually attempt to file it and it is shown to a registrar and it. is shown to a justice, if it is not accepted, I am in the

10 position that I do not know why. If that situation arises, should I make

an application for a chambers - - -

ms HONOUR: Well, the rules contemplate that if an order is made,

of the sort that has been made here in relation to the other action, that

leave can be sought from a justice and then the matter can be dealt with.

15           I mean, it is a procedure that is designed to ensure as far as possible that process that on its face falls within the rules as being oppressive or without foundation does not begin a whole process of litigation. Now, where an order has been made, the party who is discontented with that order has the right to apply by summons for leave to issue process. The

20           matter can then be considered at greater length.

MR KEATING:	I see. Well, I will do that.
ms HONOUR:	But I do not want to get away from, for the moment,

what I am just putting to you, that I can see no reason why the two
summonses for directions, which are the two matters, strictly speaking,

25           before me today, should not be dismissed, because there has been no reason offered to me why the ordinary procedures in relation to special leave applications should not be followed.

MR KEATING:  Well, on those applications, I was not actually stating

that the normal procedures should not apply, just that the High Court

30           procedures of 1976 of the High Court should apply, since I claim to

have been under a disability.

HIS HONOUR:  But we are talking about procedural rules which

govern day-to-day procedures of the court. There is a set of rules in

force governing special leave applications and they apply in your case.

35 to apply. So it seems to me that the one step that can and should be
taken this morning is that I dismiss each of those summons for directions And, as I have said, I could see no reason why they should not continue because there is some discrepancy between the handwritten dates on the

40           summons and the actual filing dates, there will be an order that the

tineen 16.8.94 7

summons for directions dated 29 June - I am sorry, filed on 29 June,
1994, be dismissed, and a further order that the summons for directions

filed on 1 August, 1994, be dismissed.

Now, that leaves on that file, your application for special leave to

5           appeal. Now, if you do not wish to pursue that application, you can either discontinue it or you can take no action in respect of it, although I think you must appreciate that yon are not t.J.ie only person concerned. It may be that those· against whom the application for special leave to appeal is made might wish to activate it themselves. I just do not know

10           about that, but all I can say at the moment is that the ~pplication for special leave to appeal is there.

.

l\1R KEATING:  Yes, I see. If no party makes a move to activate the

application, would that tend to leave open a properly brought writ of
summons being filed regardless of that file?

15            HIS HONOUR: I do not know the answer to that. But as I say, I am here really to deal with two matters, or two applications, which I have now dealt with. I just want you to understand what the position now

appears to be, and that is, at least in terms of the files that are before
me, there is the file that we have been dealing with, which still has an

20           application for special leave to appeal. And there is the other file that is not strictly before me, but the one that I brought to your attention so that you c&n understand where you are in all of this, that an action that you

sought to bring against the Commonwealth, the State and Samuel John
Peers Woods which is the subject of the order made by Dean J.

25        If you wish to do anything about that, then that has to be made the

subject of a summons for leave to issue that process. Now, if in
addition, there is some other action that you wish to commence, that is a
matter for you. But so far as that process that you sought to issue that
was made the subject of an order by Dean J, there is a direction that the

30           registrar refuse to issue that process without the leave of a justice so that

has not been brought clearly .

:M:R. KEATING:  Yes. Would I need to bring an application for one

that is a writ of summons that is - I would not endorse it with a
statement of claim but if it was on different grounds, that would not be

35           automatically refused, would it?

HIS HONOUR: Well, I do not know about automatically but if you bring any process and it seems to the registrar that it falls within the rules that we have been discussing, then it is referred to a justice of the

court and the justice looks at the document on its face and either makes

tineen 16.8.94 8

an order or directs the registrar to issue or not to issue the process depending upon what view is taken of the content of the document .

:MR KEATING:	Yes.
HIS HONOUR:	I think you just have to take these things step by step,

5           Mr Keating.

..

:MR KEATING:  I will do that., but could I j1:1st clarify one thing: you

have stated an answer to me but I am unclear as to what effect the application for special leave would have to prevent me bringing an action?

10 HIS HONOUR: I know you have asked me that question and I have

told you it is a question that I do not think I should answer.

:MR KEATING:	Is there any - - -
HIS HONOUR:	When I say that I do not think I should answer, you

are really asking me to advise you in relation to process which I do not

15           know what you have in mind and what implications the existing

application for special leave to appeal has. It may be that it is not the
implications of the application for special leave to appeal, but the fact that there is a judgment at the Supreme Court of Western Australia.
:MR KEATING:  I am sorry, I do not understand.
20	HIS HONOUR:  Well, you see, you have an application for special
leave to appeal from the judgment of Owen J but, as I understand from the papers, that is a judgment that relates to a whole range of procedural matters in relation to discovery and the like.
:MR KEATING:  Yes.

25           HIS HONOUR: · But you now tell me that your action in the Supreme

Court of Western Australia has been dismissed.

MR KEATING:	Well, yes, that has happened since the application.
HIS HONOUR:	Well, that does not appear from the file.
:MR KEATING:	No, it does not but the application was made at an

30           earlier time.

HIS HONOUR:  Then on the face of it there is a judgment at the

Supreme Court of Western Australia. 

tineen 16.8.94  9 

MR KEATING:	But I do not believe it is final because it was made
ms HONOUR:	Well, it may or may not be and I clearly cannot

·~ comment on that because I have not even seen it. But what I am

5            trying to point out to you is that if there is a judgment e.f the Supreme Court of Western Australia dealing with issues that you are seeking to raise in some other action, in some other court, then you must consider

what the implications of that judgment are.

[10.58am]

10 MR KEATING: Well, to me it means 'lothing but to other people it

may mean another thing.

ms HONOUR: Well, it may, Mr Keating, but in the end if it becomes i·elevant, it is a matter for consideration by the court before whom some

other process it sought to be brought. But it just seems to me we are

15           tending to go around in circles a bit.

MR KEATING:  Yes, I apologise. Well, I will - in the next two days I

will attempt to file the writ of summons that is not endorsed with the

statement of claim. And also, could I just ask one thing, the evidence

that I have got in a Local Court action in Fremantle gave rise to the

20           action in the Supreme Cou.1 and that has been on foot until recently and

I have struck some problems with it. But to the extent that I want to

bring an action in the High Court, I would like, if I could - since I am intending to join the State of Western Australia as a defendant also - I wish to bring an application for an injunction against the decision of that

25           court under section 60 of the Judiciary Act. As far as time constraints go how would time constraints affect me applying for that injunction if in the next few days I file a writ of summons?

[11.00am]

ms HONOUR:  Well, section 60 deals with a suit against the State

30 brought in the High Court. I am not sure what you appear to be - - -

MR KEATING:  I am joining the State on the grounds of fraud of a

doctor causing me to not - - -

ms HONOUR: Well, I did not take you into that area. I was just pointing out to you that section to is concerned with an action of the

35 State and the power of the this court to grant an injunction. Frankly, at

the moment I do not really see what that has to do with an action

brought in the Local Court at Fremantle.

tineen 16.8.94 10

MR KEATING:  Well, I have not shown the connection but I was only

inquiring as to how long it could take before I could be heard by a few days?

5	ms HONOUR:	Do you mean - - -
MR KEATING:	If I commenced an action in this court.

ms HONOUR: Well, I think you just have to bring your process and it will be dealt with as soon as possible and the Court has commitments across the country and your matter will be dealt with as soon as it can

10           be dealt with.

MR KEATING:  I see. I suppose the registry in Canberra would have

to determine the timing of it?

ms HONOUR:  Well, if it was filed here, it would be considered. It

would be a matter for registry-general in consultation with any Justice of

15           the court before whom it is likely to come. But could I just say to you

MR KEATING:  Yes.

ms HONOUR: - - - in relation to registry. You must remember that it is not the function of officers of registry to give legal advice and you

20           must not expect that when you have problems - while I know they do their best to help you - you cannot expect them to advise you where you might stand legally. It would be inappropriate for them.

?vlR KEATING:  Well, I was not asking for advice. I was just asking

if the timing - - -

25 ms HONOUR:  No, but something which you said earlier rather

suggested that you might be expecting more of registry officers than you

?vlR KEATING:  Well, I apologise for being forward about trying to

can fairly expect of them.

get information but it - - -

30        ms HONOUR: Well, I was not suggesting you were forward. I was just simply pointing out to you that the functions of officers of registry really do not extend to advising litigants.

?vlR KEATING:  I do not think I have obtained any advice.

tineen 16.8.94 

ms HONOUR:  Right. Well, Mr Keating, just so that you are clear as

to what has happened, I have dismissed the two summonses for
directions. In that file, the application for special leave to appeal still
stands. In the file, which as I say, is not strictly before me, there is no

5            summons seeking leave to issue process and so that matter just remains the subject of the order made by Dean J. Now, that is as far as I think we can take it this morning.

:MR KEATING:	Thank you, your Honour.
ms HONOUR:	And the court will adjourn.

10           At 11.07 AM THE MATTER WAS ADJOURNED INDEFINITELY

tineen 16.8.94 12