Lacey v Hayden & Anor, v Crompton

[2002] HCATrans 27

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S204 of 2000

B e t w e e n -

GILLIAN LACEY

Applicant

and

TERENCE HAROLD HAYDEN

First Respondent

VICTORIA HAYDEN

Second Respondent

Office of the Registry
  Sydney  No S133 of 2001

B e t w e e n -

GILLIAN LACEY

Applicant

and

ALAN CROMPTON

Respondent

Applications for special leave to appeal

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 FEBRUARY 2002, AT 2.19 PM

Copyright in the High Court of Australia

______________

MS G. LACEY appeared in person. 

MS L. McCALLUM:   May it please the Court, I appear for the respondent in the second matter of Crompton.  (instructed by Mallesons Stephen Jaques)

McHUGH J:   Perhaps the matter of Lacey v Hayden might be called outside three times, please.

COURT OFFICER:   No appearance.

McHUGH J:   Ms Lacey, there are two matters and you have 20 minutes for each one so we will hear you for up to 40 minutes, but how you spend your time is a matter for you, if you prefer to spend 30 minutes on one and 10 minutes on the other, well, that is a matter for you.  You take your own course as to how you want to spend your time.

MS LACEY:   Okay, so start now.  I just want to put a bit more background into it.  This was a matter when I sold my house to some people, Hayden, and I asked my ex‑solicitor to draw up a contract.

McHUGH J:   You can take it we have read all the material that is in the papers so that may help you to some extent.

MS LACEY:   All right, I will have to think again.  Did you get my table of authorities?  No, that is not it, it is a green one.

McHUGH J:   Yes, here it is, it is called “Applicant’s Authorities”.

MS LACEY:   In the matter of myself against Mr Crompton, when the Haydens would not settle and he said I had to send a letter to them asking them to settle and put the background, and it was supposed to be a compromise between myself and the Haydens, this letter in the other case against the Haydens is considered as a refusal by me to settle.  That letter starts off saying “Mr Straton has invited us to put a proposal to him” and it was a “without prejudice” letter.  I agreed to that letter going because I thought it was a compromise or as it says, a proposal.  In the matter S 204 with me against the Haydens they say that that letter is a refusal by me to settle the contract and therefore the Haydens were absolved from settling with me.

McHUGH J:   What do you mean by S 204?

MS LACEY:   That is the Hayden matter number.

McHUGH J:   Yes.

MS LACEY:   If it is a letter which is just a request for them to settle I do not see how it can be used to imply that I am refusing to keep a contract.  It was then 9 November and the Haydens still had not paid me and they were meant to have paid me on 1 November and so that is why I agreed to this letter going which Mr Crompton had told me was the right way to go about things, but in that matter it is considered that I refused to settle.  I think that is wrong to rule on a case and say that I refused to settle the contract when I am just putting a letter which is a proposal.  You will see in S 204 he leaves off the first paragraph of the letter which says ‑ ‑ ‑

McHUGH J:   Where is it in the book?  When you want to take us to the book you should tell us the page number so we can look it up.

MS LACEY:   Okay, hang on a second.  This is S 204 book, AB 31.

McHUGH J:   This is the letter that starts “Your clients did not settle by ‑ ‑ ‑”

MS LACEY:   Yes, but they have left out the first paragraph.  The first paragraph says that Mr Straton is inviting us to put a proposal to him to solve the problem.  I have put that letter in my supplementary book so you can read the whole thing and that is number 49 in the supplementary book for S 204, it shows the letter.

McHUGH J:   Number 49?

MS LACEY:   Yes, page 49 of the supplementary book.  It says:

We refer to various discussions with your Mr Straton concluding with your invitation to place before you a proposal –

That is not a refusal to settle, that was a proposal at putting it right and that is why I agreed to that letter going.  They say because the letter did not put in a settlement date that I was refusing to settle with the Haydens.  That is not true, that is a letter which was put in as a compromise because the Haydens wanted me to get out before they paid me.  That was not the written contract.  I wanted the agreed contract and so that letter was the compromise between the two.

McHUGH J:   I do not know whether you are aware, I think you are from what was said in the Court of Appeal, that findings of fact made by the trial judge are binding on the appeal courts unless in very exceptional circumstances the court can set them aside.  There are various findings of fact that have been made against you in this particular case.  For the purpose of conducting your appeal here you either have to persuade us that on those findings of fact there is something special about the case which would require the grant of leave or, if this such an exceptional case that we, ourselves, should interfere with the findings of fact, something that we rarely do.

MS LACEY:   Yes.  How can you, when you write a letter to somebody –at their invitation – then be considered to be refusing something?

McHUGH J:   At the moment I am not quite following your argument.  You seem to start off with the letter – you refer to the letter of 9 November.

MS LACEY:   Yes, that is right.

McHUGH J:   The letter that you refer to which is at page 31 of the original books says, “Your clients did not settle by 8 October”.

MS LACEY:   Yes, but there is more to the letter than they put into the appeal books.

McHUGH J:   Yes, but what I am not following at the moment, I am sorry, Mrs Lacey, is this.  This letter that is in the supplementary book at page 49 is dated 9 November, well after 8 October.

MS LACEY:   No, I am not talking about 8 October, I am talking about 9 November.

McHUGH J:   I know you are, but you referred us to that.  The letter at page 31 says you did not settle by 8 October.

MS LACEY:   No.  That says that in that letter, as part of that letter, but it does not put the whole letter in.  The first paragraph of that letter, to me, is very essential.  It says “with your invitation to place before you a proposal”.  How can a letter like that be considered me refusing to settle?

McHUGH J:   That is not the point.  The point that is being made against you is set out at the second page of SB 49 and states that “Your clients did not settle”, so what the letter is saying is that you are already in breach.

MS LACEY:   I beg your pardon, that is saying the Haydens did not settle.

McHUGH J:   Yes, “Your clients did not settle”.

MS LACEY:   Meaning the Haydens, that is the opposition, not me.

McHUGH J:   Yes, so where does that lead us to?

MS LACEY:   This letter was by the Haydens solicitor asking my solicitor to put a proposal to them.

McHUGH J:   Yes.

MS LACEY:   Okay, here is the proposal.  It puts the background of the matter, it then says what we would like as our compromise.  That is not a refusal to settle.

McHUGH J:   What is the refusal to settle to which you are referring?

MS LACEY:   I am referring to the one in the appeal court, Your Honour.  It is between numbers 31 to 35.  It says in that, “There was no evidence that the appellant’s solicitor”, which is Mr Crompton ‑ ‑ ‑

McHUGH J:   Sorry, what page  is this?

MS LACEY:   This is on page 30 of the appeal book.

McHUGH J:   Yes, it says:

There was no evidence that the appellant’s solicitors replied to the effect that settlement was required on 1 November –

MS LACEY:   Yes.  On page 38 of the S 204 appeal book, it says:

It follows, in my opinion, that the respondents were absolved from performance of their obligation ‑ ‑ ‑

McHUGH J:   Yes.

MS LACEY:   Why should they be absolved from performing their obligation because we put a proposal, at their invitation, to them.

McHUGH J:   The argument against you is that you were in default much earlier.

MS LACEY:   I was not in default much earlier, your Honour, I only had to move on 8 December.

McHUGH J:   That is what you say.

MS LACEY:   It says so in the contract.

McHUGH J:   Yes, but were you not asserting something else?

MS LACEY:   No, I was telling them it was possible I might be late.  I told Mr Crompton I might be late.  He told the Haydens I might be late.  It says in number 19, that is page 25 of the appeal of S 204, even if they were worried, if it was “an anticipatory breach” they could cancel the contract or terminate it, but if they did not terminate it they had to keep on with the contract.  They did not terminate it, but he says that that letter is saying that I refused to settle.  It is not saying I refused to settle.

McHUGH J:   I do not follow where the judge is saying that that letter is saying it is a refusal by you to settle.

MS LACEY:   On page 38, your Honour.  There are several things going through to it.  Here, starting on page 37 at point number ‑ ‑ ‑

GUMMOW J:   I think you really have to start back on page 27, paragraph 25.

MS LACEY:   Yes.  It says if the appellant ‑ ‑ ‑

GUMMOW J:   Just take a moment to read it for yourself.  Then you see on page 28 the court says at paragraph 26:

The evidence was sparse, but in my view the respondents’ submission should be accepted.

Then it goes into all the detail, but that is how it all starts off.

MS LACEY:   Yes.

GUMMOW J:   It starts off with a proposition of law at paragraph 25, that is a proposition of law, and then it goes in to analyse the correspondence.

MS LACEY:   Yes, because the correspondence is an offer which Mr Straton asked my solicitor to put, how can that be considered as a refusal by me?  It is not a refusal by me, it is a proposition put to the other side as a compromise at their request; not at my request, at their request.  This, incidentally, was already nine days after they were in default of paying me.

McHUGH J:   Yes, go on.

MS LACEY:   Do you see that now?

McHUGH J:   No, I do not.

MS LACEY:   Can you tell me what you do not understand, your Honour?

McHUGH J:   I just do not follow your point,  Perhaps one of the reason I do not, Mrs Lacey, is that I am looking for something that makes this a special case.  We do not sit here as a court of appeal in the true sense of the word.  We sit as an appeal court but generally only in respect of questions which affect the national interest, there has got to be something special about them.  I just do not see at the moment anything special about this case.  The most you can say is that the Court of Appeal got it wrong.  We do not grant leave simply because we might think the Court of Appeal got it wrong, there has got to be something special about the case.

MS LACEY:   So, I am being accused of not settling a contract, and that is why they ruled against me.  Here is the information that says that I would settle the contract.  So how can they rule against me on a matter of fact when the facts were there?

McHUGH J:   You cannot select your own issues of fact.  You may be putting an offer as of 9 November but the suggestion seems to be that by your conduct, perhaps at some anterior point or perhaps even later, you had repudiated the contract.

GUMMOW J:   Look at page 37.

MS LACEY:   In the appeal book?

GUMMOW J:   Yes, page 37, about line 20, and over the page.

MS LACEY:   How can they make an inference on what I was doing when they would not admit the evidence?  I had the evidence ‑ ‑ ‑

GUMMOW J:   No, no, I just ask you to read what it said there.

MS LACEY:   From line 20 down?

GUMMOW J:   Yes, “by the letter of 9 November”, then it says:

by the letter of 1 December 1989, which explicitly said that the appellant “expects settlement forthwith together with the right to occupy the property after settlement for two months” –

et cetera.  That was the view that was taken on the actual correspondence.  All of this just gets into the minutiae and that is not a sort of case that we have been involved in.

MS LACEY:   It is not, for me, it is my life.

GUMMOW J:   We understand that.

McHUGH J:   We understand that, but so are criminal cases.  Mrs Lacey, there are hundreds of thousands of cases heard in Australia every year.  We can only hear about 70 or 80 cases.  We have to pick the eyes out of it.  Ordinarily, cases stop in the final court of the State or the Federal Court.  We do not sit here to hear every appeal.  We used to once but since 1984 we have not.

MS LACEY:   Do you think it is right that a person is not allowed to present the truth and then it is ruled against them?  I have lost everything I own because of it.  The truth was in the court, and they refused to look at the documents.  Do you think that makes it right?

McHUGH J:   Whether it makes it right or not the question is that we do not sit here as a general court of appeal.

MS LACEY:   It is not a general court of appeal.  Is it right that solicitors should destroy documents and then a person has to prove their case with no documents?

McHUGH J:   Yes, well, we have a limited jurisdiction, we can only take a limited number of cases and that is the problem.  People think that if they have got a wrong decision in a court of appeal then they can automatically come up here.  I am afraid that is not right.  We would never be able to hear half the cases.  There are seven Justices in this court.  We have got hear constitutional cases and appeals in criminal cases, there is only a tiny fraction of cases.

MS LACEY:   Can it not be sent back to a lower court where evidence is taken into account?

McHUGH J:   No, we are hearing a leave application.  We do not decide anything except to grant or refuse leave.  If we granted leave the case would be heard by the Full Court of the High Court.  Our Court just does not have the time to deal with every case where it is argued that there has been a wrong decision.

MS LACEY:   So, it is okay for a citizen to go down the gurgler with everything left of me?  If somebody came and took $2,000 or $25,000 or $200,000 out of my pocket, you would put the beggar in gaol.  It is not up to me.  The evidence is there before the court and they will not look at it.  That must be wrong.

McHUGH J:   It may be wrong but that is a different question from whether or not we would grant special leave to appeal.

MS LACEY:   Is not special leave meant to overcome injustices?

McHUGH J:   No, special leave is a requirement imposed by the Parliament so that, ordinarily speaking, we only take very special cases.  There has got to be something very special.

MS LACEY:   All right, can you tell me any other cases where the solicitors destroy all the documents and a person has to prove their case without it, then, a solicitor’s word is taken as truth because he has destroyed all the evidence?

McHUGH J:   The judge, at first instance, saw the solicitor.  He believed the solicitor in preference to you.  We do not see the solicitor.  We do not retry the case.  Ordinarily, the moment there is some dispute about the facts of the case, we will not touch it.  We are interested in questions of law which affect the country.

MS LACEY:   Is it not a law not to destroy evidence?

McHUGH J:   Yes, but it is different.  What you have got to get into your mind is that our role is different from that of other courts.  Legislature has given you a right to appear in the District Court, run your case, and a right of appeal to the Court of Appeal and, ordinarily speaking, that is the end of the matter.  That is the end of the matter in hundreds of thousands of cases in this country every year.  That is as far as they can possibly go.

MS LACEY:   It is quite okay then for people to be cheated and other people, because of more power, get away with it?

McHUGH J:   It is not okay at all.  The most you can say is that the court below made a wrong decision.

MS LACEY:   They did make a wrong decision.

McHUGH J:   Everybody – not everybody – but almost everybody who loses a case in a court claims that they have been wrongly deprived of their rights.

MS LACEY:   Your Honour, a solicitor is meant to safeguard their client’s interests.  They are not meant to make their client sign a blank page, they are not meant to change the instructions over their client’s - they are not meant to not go through any of the contracts ‑ ‑ ‑

McHUGH J:   Yes, I know that.

MS LACEY:   Not meant to sign a solicitor’s certificate saying you have gone through a mortgage with somebody when you have not.  All that is just thoroughly dishonest.  How can it be right that that happens?

McHUGH J:   It has been held against you – you see, your evidence was rejected and that is the problem that you have.  The trial judge accepted Crompton’s evidence and your evidence was rejected.  Other judges might have held the other way.

MS LACEY:   Exactly, so it should be heard before another judge who is not biased.

McHUGH J:   You cannot just keep retrying cases and cases, that is the law.

MS LACEY:   With respect, your Honour, when a person asks a client to convey their property, the client is meant to get paid.  You are not meant to do the conveyancing or take on the conveyancing for somebody’s property and they do not get paid.  That is part of the deal.

McHUGH J:   Yes, I know.

MS LACEY:   How can it be right that he does not get me my money, I am left out and thrown to the wolf with nothing because he has not taken the right measures?  There are measures to put a contract right.  None of them were taken.  How can he rule against me?

GUMMOW J:   No, wait a minute, you are talking about rectification?

MS LACEY:   And notice to complete.

GUMMOW J:   The case on rectification seems to me to have probably been hopeless, that is why was never brought.

MS LACEY:   Why was it hopeless?

GUMMOW J:   For technical legal reasons which I do not think you understand and which is not my task to sit here and try and explain it to you.

MS LACEY:   No, but I have read all these rules that are published which are the reasons for rectification and my case falls under about 20 of them.  Quite apart from that, if rectification would fail, then he should ask - do a notice to complete which will force the purchasers to pay me.  It cannot be right that I sell a house ‑ ‑ ‑

GUMMOW J:   The Court of Appeal dealt with that too, did it not?

MS LACEY:   No, it did not.  He has just glossed over it.  The District Court judge just glossed over it, said that Crompton was trying to extricate me from my predicament.  That is not the case.  Crompton was paid to take the correct measures to make the people pay me.  You cannot just say, “He did not do anything” and forget about it.  This is my life, this is everything I own.

GUMMOW J:   We do understand that.

MS LACEY:   You wonder why people go berserk and go and chop up a whole lot of people out of sheer frustration.  There is no way that a solicitor can take none of the right measures and a client can just go down the bloody drain with nothing, that is not right.  I mean, for god’s sake, there must be a sense of justice.  I might be an unrepresented litigant and not know all the rules but I was not able to get representation because Mr Crompton contacted all the solicitors I went to and so nobody would work for me.  That is all in the evidence.  He says himself that he does not think it is worth going through contracts with his client.  How can all that be right and a client can lose everything?  If that is the rules it should be published wide and clear so everybody would know about it.

McHUGH J:   It is not the rule and what you have got to face up to is the judge did not accept your version of the facts.  You dispute that, I know ‑ ‑ ‑

MS LACEY:   Of course I do.

McHUGH J:   But you are stuck with it.

MS LACEY:   I am not stuck with it, your Honour, I have got to do something about it.

McHUGH J:   You cannot do anything about it in this Court, I am afraid.

MS LACEY:   Those are not the facts.  The judge did not judge on facts, he ignored the facts.  The amount of mistakes he has made in that book is just chronic.  For instance, with the bank mortgage, he just said that was “pie in the sky”.  I have got all these documents to say exactly what I applied for. He says, that was “pie in the sky”, it was nothing.  Another judge in the Bank of New Zealand Case admitted that that was correct, that that was the terms that the bank had sold me the mortgage under, and I am to get nothing.

Mr Crompton signed a solicitor’s certificate which says that he went through the contract with me.  He did not.  And I can just be told to lose everything I own because of that?  That is not justice, your Honour, and I am asking you in the case of justice to do something about this matter.  I have been cheated out of everything I own.  Before I started this case I had a perfectly normal life ‑ I had my ups and downs like anyone else – now, I have nothing and I have fought for all these years.  I got many solicitors to try and help me and what did Mr Crompton do, he gets in touch with them and then they dump me and then I did not get legal aid.  That is all in facts, that is facts.  I put in my submission here, on the last bit of it, how every single one of my things right from 10 years ago, that is starting on page 186 of my S 133, everything I said was to get two months, up to two months in the property.  Everything I asked for and he says, on 18 September, one day in a decade, I changed my mind.  That does not make sense, that is not logical, and the judge has abused his powers.  He could not be bothered with the case and he just ruled for Mr Crompton.  There will never be fairness when it is a lawyer being judged because everybody is mates, are they not?

McHUGH J:   Lawyers are found guilty of negligence again and again.

MS LACEY:   Only if they can get another lawyer to fight against them, not if they can get some other poor sucker off the street, like me, to try and get my fair go.  Is it right that a lawyer is retained to convey a property and their client ends up with nothing?  That is not right.  It cannot be right.  He has not done of the things that are the normal way to get a person their property, and it is considered to be okay?

McHUGH J:   I have pointed out to you more than once that the judge did not accept your account and that is the difficulty that you have in this Court.

MS LACEY:   But the account is there in the facts.  The facts are there, not just my evidence it is written documents and where there are not written documents Mr Crompton has destroyed them.  He has destroyed the instructions for that case.  He has destroyed all the ‑ ‑ ‑

GUMMOW J:   Now ‑ ‑ ‑

MS LACEY:   Yes, he has, he has admitted it.

GUMMOW J:   Now, just a minute, is there any judicial finding about that?

MS LACEY:   He just says I latched onto it as some wrongdoing because the, what do you call it, the document was missing.

GUMMOW J:   I see.

MS LACEY:   That is not “latching onto something”.  The document has been destroyed, that is not right.  You cannot tear up the evidence.

GUMMOW J:   Why do you say it has been destroyed?

MS LACEY:   He said so in the evidence.

GUMMOW J:   I see.

MS LACEY:   He thought his secretary had destroyed it.  Also, how can you have a case where there have been at least seven contracts, all of them are destroyed.  The Haydens have destroyed theirs.  Mr Straton has destroyed his.  It is by law solicitors have to keep the contracts for seven years.  They have all destroyed their documents and then I am being judged on their oral evidence where they stand up and say something entirely different.  All the documents have been destroyed.  That is not fair.  That is not justice; it is not justice at anybody’s terms.  You would not get this in a third world country without a big complaint.  In Australia you should expect a solicitor to keep the evidence, not to destroy the evidence and then stand up and give oral evidence which is completely contradictory to what happened.  It should not be accepted.  The documents should not be destroyed.

McHUGH J:   Yes.

MS LACEY:   Is there anything else you want to ask me?

McHUGH J:   No, there is nothing that comes to my mind, Mrs Lacey.

MS LACEY:   In the Hayden matter, on appeal book number 4 – this was, by the way, done on credibility, the Hayden matter – appeal book number 4, I agreed immediately to settle when the Haydens served a specific performance claim on me.  I had been trying to get them to settle before that and the judge admits that, then the appeal court say I did not try to settle.  That is on page 4 of the Hayden S 204 appeal book.

McHUGH J:   You have got to deal with it the way the Court of Appeal dealt with it.  The Court of Appeal supported the correctness of the decision of Justice Young by applying a principle in a case called Foran v Wight.

MS LACEY:   Yes, and I have read Foran v Wight, I went and got a copy of it, and it is not in the least bit the same because it seems that the purchasers, it was a bit dicey whether they could raise the money but nevertheless the other people said, for sure, they could not settle.  What happened there, they terminated the case and the people were able to sell to other people.  I was not able to sell to anyone else because the Haydens kept this case on for eight years and then a week before the case they withdrew their matter and all the onus of proof was on me.  I mean, is that just?

GUMMOW J:   You put on a cross‑claim, had you not?

MS LACEY:   I put on a cross‑claim, yes, and then one week before the case they withdrew their matter.  All the onus of proof was on me.  They did not have to produce ‑ ‑ ‑

GUMMOW J:   The onus of proof was always on you because you had put on a cross‑claim.

MS LACEY:   No, but they put on a claim.

GUMMOW J:   Quite, but they had the onus of proof on that, and ‑ ‑ ‑

MS LACEY:   They did not.

GUMMOW J:   Just listen to me.  If they had gone ahead they would have had the onus of proof on that.  If you have gone ahead with your cross‑claim, in the event that you did, you had the onus on that.

MS LACEY:   Yes, but I mean if you keep a ‑ ‑ ‑

GUMMOW J:   You cannot stop the other side from settling a case they have against you by withdrawing it.

MS LACEY:   They do not have to – they have kept it on foot for eight years and that is okay?

GUMMOW J:   It happens all the time.  Many cases do not go to trial for particular reasons.

MS LACEY:   Because they settle.  What had happened with these people, they had bought my house through the bank.

GUMMOW J:   Yes, all right, I understand.

MS LACEY:   But nobody does understand.  Does it not matter to you that a person ‑ ‑ ‑

GUMMOW J:   I understand that fact.

MS LACEY:   Does it not matter to you that a person ‑ ‑ ‑

GUMMOW J:   I am not here to answer your questions.  You are here to put your case.

MS LACEY:   Yes, my case is that I have been cheated out of everything I own.

GUMMOW J:   That is not your case for showing the necessary degree of legal error on the part of the Court of Appeal.  We have both said it to you several times.  We have offered you 40 minutes to develop your arguments and I invite you to do so for the rest of the time you have got available to you.

MS LACEY:   I am trying to explain to you that if there are documents that show a person is right, how can they be ignored by a trial judge and that he rules on oral evidence by somebody else that he says he prefers?

GUMMOW J:   You will not advance your case by a series of rhetorical questions.

MS LACEY:   I do not, perhaps, present it very well and maybe did not present any of it very well, but if I had had representation ‑ ‑ ‑

GUMMOW J:   The Court of Appeal thought you prepared it and presented it very effectively.

MS LACEY:   He still made several errors in his judgment.  He says things that were entirely untrue, implying that in the one case, I think it was number 92, that I had told a lie about something.  There was the evidence, in writing, and he still ruled that I had been dishonest about it.  That cannot be right, that I am being ruled against, people are saying things about me and they are not true, because they are refusing to look at the documents.  Can you not understand that?

GUMMOW J:   I am not here to answer your questions, now please proceed with your submissions if you wish to do so.

MS LACEY:   Yes, okay.  All the instructions have been changed over my signature on a blank piece of paper.  None of the contracts have been gone through by the solicitor.  The Haydens have refused to keep the contract and Mr Crompton took none of the right measures to get me the case so I just cannot see how they can rule against me to say that it is my fault that the thing had not settled.  It is not my fault.  I was owed that money on 1 November 1989 and it is 12 and a half years later and I have not been paid yet and I am asking you to please see that the truth of the matter.  As I said, if they walked up behind me in the street and stole money out of my pocket you would put them in gaol, but because they have done it ‑ ‑ ‑

McHUGH J:   We would not, it is nothing to do with us.

MS LACEY:   No, the courts would, your Honour, the courts, and are not you – the High Court – to oversee the justice of the country?

McHUGH J:   Justice according to law.  We have to operate within certain rules.

MS LACEY:   Is it the law that you can tear up documents?  Is that the law?

McHUGH J:   So far as this particular case is concerned is was not a relevant – assuming that you are right about that and, of course, we do not have the evidence before us.  We have not got the transcripts of evidence before us of these trials.  But assuming you are right, the fact is that, notwithstanding that, the trial judge accepted the oral evidence and that is your difficulty.

MS LACEY:   Of course it is my difficulty, I have suffered from it for 12 and a half years.

McHUGH J:   I know.

MS LACEY:   It is not a case of just a difficulty.  How can you put – evidence it is there in the court and you ignore and chose somebody you like better?

McHUGH J:   That can happen from time to time.

MS LACEY:   Of course it is happening.

McHUGH J:   Yes, and happened correctly, that documents do not always tell the truth.

MS LACEY:   But the documents do tell the truth.

McHUGH J:   I know there are different documents here but other interpretations are put on the documents and you seek to make use of documents in a way which, if I followed the argument correctly, do not seem to me to be legally significant for the reasons that Justice Gummow pointed out to you earlier in the other matter, in the Crompton matter.  The reasons are set out at page 25 through and that letter of the – for instance, in that particular matter – of 9 November, just does not really deal with the true legal issues that are involved.

MS LACEY:   How can that letter be considered a refusal by me when it is not a refusal by me?

McHUGH J:   Nobody said that letter was a refusal by you, did they?

MS LACEY:   Yes, they certainly did.

McHUGH J:   Where did they?  Would you take me to the precise passage.

MS LACEY:   Okay, hold on:  page 33, paragraph 38.

GUMMOW J:   Yes, “proposed a solution to a problem”.  Well, that is right, is it not?

MS LACEY:   Yes, but further on it says the reasons that were set out and the letter further conveyed that she would not complete unless she was assured that she would have:

possession of the property for (at least) two months. 

That was the proposal.  It was not me refusing to settle the contract as it was.

McHUGH J:   They are not saying that it was there, at this part of the argument.  That is what I do not follow.  They have not said that in that passage.

MS LACEY:   What do you say this means then:

The reasons for that was set out, and the letter further conveyed that she would not complete unless she could be assured that she would have possession of the property for at least the two months. 

McHUGH J:   That is what it does say, does it not?

MS LACEY:   No, it does not say that.  It says that but that is the proposal.

GUMMOW J:   There we are, you see, we are construing this letter.

MS LACEY:   Well?

GUMMOW J:   It is open to various constructions, to put it at the highest, for you, and there is another construction that has been taken against you.  That is not a special leave point.

MS LACEY:   You mean that is okay?

GUMMOW J:   Not that it is okay.  It is an equivocal matter.  You see it, naturally enough, in the way that favours you.  There is another view which is otherwise, to the other effect.  We offered you, I think, 40 minutes.

MS LACEY:   I put my thing in English, I am not putting it in the legal terms, but if you do something as a proposition the other people have asked you to put, that is not a refusal, that is a proposition.  If that is the case, then my ex‑solicitor, he could have done a notice to complete, he puts this letter in, so I lose out on everything.  I can get no action against the Haydens because he does not take the right measures.  He puts this letter in which the other people say is a refusal and my ex‑solicitor could have taken the legal measures - this is legal measures.  If he though rectification would fail, it says in this book here, “If your client asks for something and you think it will fail, I will give them an opportunity to put further instructions.” 

McHUGH J:   Yes, but if you have got an obligation to do something and you then put a proposal which is inconsistent with that obligation, that may be regarded by the other side as a refusal to complete.  That, as I understand it, is the way the Court of Appeal saw the matter.  They may be right or wrong but it is just a question of interpretation.

MS LACEY:   Then, on the other one, they think Mr Crompton did the right things by me.  It is different in both cases.  In the case where Mr Crompton put the letter, it is asking for something, which he told me was the right way to go about it, therefore, he was wrong.  How can I just be the pig in the middle and just lose everything?

McHUGH J:   As I have said to you more than once, you failed against Crompton because the findings of fact that were made were adverse to you, and that is the difficulty of your case.

MS LACEY:   Your Honour, I ‑ ‑ ‑

McHUGH J:   If this Court sees an injustice and within the law it can do anything about it, it does not hesitate to do it, its whole history indicates that, whether we are talking about the rights of Aboriginals or anybody else.  We can only act within the confines of the rules.  We are just not like an ombudsman who can go around and right what we think are injustices and your difficulty is that the facts have been found against you, the trial judge did not accept your evidence.  From your point of view it is a tragedy.

MS LACEY:   It is a tragedy but the point is what I asked you to see is that they have destroyed the evidence so the judge is ruling not on evidence because he has destroyed the evidence.  Why does a solicitor destroy evidence?  Because it is detrimental to him, they do not do it if it supported their case.  He has kept other instructions for 10 years and yet this lot of instructions for the Hayden case have been destroyed.

McHUGH J:   Yes, well I understand what you are putting but it comes down to a question of fact.  The judge saw Crompton in the witness box, he said “I accept him as a witness of truth apart from one or two matters”.  But that is it, he did not accept you, Mrs Lacey.

MS LACEY:   I am not asking him just to accept my word I am asking him to accept the evidence, not my word.  I admit I probably did not put it well but I am asking him to accept the evidence.

McHUGH J:   Yes, I know but Crompton put, in effect, a gloss on the documents.  He said they do not show the whole picture.

MS LACEY:   He did not, he destroyed the documents.  He did not put a gloss on them, he threw them away.

McHUGH J:   I am talking about the documents as a whole.  You rely on this and that ‑ ‑ ‑

MS LACEY:   I am relying on those documents but I am also relying on the contracts and the instructions which are the main thing in a case and they have been destroyed.  How can a judge say it is okay for somebody to destroy a thing and then they give different evidence?  In a court you will never get completely unbiased when lawyers are ruling on lawyers, will you?

GUMMOW J:   That is not true.  You should not say things like that.

MS LACEY:   With respect – well, I am sorry, I have to, your Honour.

GUMMOW J:   We see many more cases than you do over a much longer period of time.

MS LACEY:   That might be possible, your Honour, but you see it from your ‑ ‑ ‑

GUMMOW J:   No, we have all been in very active practice for long periods of our life.

MS LACEY:   I am not in active practice, I am just a client who was not told ‑ ‑ ‑

GUMMOW J:   We have dealt with a lot of lawyers and we have seen a lot of disputes with lawyers.

MS LACEY:   And you think it al all right for a lawyer to destroy documents?

GUMMOW J:   No, we do not, but we do not think our experience supports any generalised assertion of a class condemnation of the type you are carrying out.

MS LACEY:   I am sorry but my ‑ ‑ ‑

GUMMOW J:   And you are not advancing your case by doing so.

MS LACEY:   I have not advanced my case anyway, you have just ruled against me because I ‑ ‑ ‑

GUMMOW J:   We have not ruled against you yet.

MS LACEY:   It would certainly seem you are about to.

McHUGH J:   Yes.  Well, I think your time is up.  Thank you, Mrs Lacey.  The Court does not need to hear you, Ms McCallum.

In matter S133 of 2001, the applicant failed in her actions in the New South Wales District Court against her previous solicitor for breach of contract and negligence relating to certain conveyancing transactions.  To a very significant degree, the case turned upon issues of fact.  The appeal to the Court of Appeal involved challenges to factual findings.  In a detailed judgment, the Court of Appeal said that these challenges failed and added that, intrinsically, there was no merit in the applicant’s case and that a lack of legal representation had had no bearing upon the result. 

In those circumstances, there are no reasonable prospects of success in any proposed appeal to this Court.  Special leave must be refused with costs.

In matter S204 of 2000, the applicant appealed to the New South Wales Court of Appeal against the dismissal by Justice Young of her claim for damages for failure to complete a contract for the sale of land.  The Court of Appeal supported the correctness of the decision of the primary judge by applying the principles stated in Foran v Wight (1989) 168 CLR 389: that if one of the parties to a contract for the sale of land makes known to the other that it will not perform its obligations, the other party does not have to perform its obligations.  The Court of Appeal gave full attention to the evidentiary basis for the application of that principle. 

Again, there are no reasonable prospects of success in the proposed appeal.  Special leave must therefore be refused with costs.

AT 3.04 PM THE MATTERS WERE CONCLUDED