Little v State of Victoria

[2002] HCATrans 28

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M81 of 1999

B e t w e e n -

JOHN DAVID LITTLE

Applicant

and

STATE OF VICTORIA

Respondent

Application for leave to re‑open

GLEESON CJ
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 FEBRUARY 2002, AT 12.45 PM

Copyright in the High Court of Australia

MR J.D. LITTLE appeared in person.

MR S.E. MARANTELLI:   I appear on behalf of the respondent, if it please the Court.  (instructed by the Victorian Government Solicitor)

GLEESON CJ:   Yes, Mr Little.

MR LITTLE:   Your Honour, I notice that the two judges who heard my special leave application are on the Bench.

GLEESON CJ:   Yes.

MR LITTLE:   I question whether that is appropriate.

GLEESON CJ:   Yes, it is appropriate.  Go ahead.

MR LITTLE:   Sir, my objection to Justice Hayne sitting on the special leave application is stated in the appeal book at page 64.  I am quoting from paragraphs 20 and 21:

20.      As Justice Hayne was part of the Supreme Court regime that I claim to have been subverted, he ought to have declined the hear the application, if he read the application book.

21.      If he did not read it, there is even more reason to re-open the application.

My reply to the respondent’s summary of argument that was before the two Judges said quite bluntly‑ this is page 51 of the appeal book, lines 17 and 18:

The Law Institute of Victoria subverted the Supreme Court.  The normal redress on appeal etc was not therefore available to the applicant.

It was necessary for me to state that because the State of Victoria had said that my appropriate redress was by appeal and other means.  Also before the Court on the special leave application was my summary of argument in the appeal book at page 53, at line 5, where it said:

1.        The corruption stemmed from a relationship between judges of the Victorian Supreme Court and the Law Institute of Victoria.

That is line 5.  My statement of claim referred to the then Chief Justice undermining “the independence of the judicial officers of the Court in relation to any challenge to the validity of the fee”.  That appears in the appeal book, page 16, line 18.  All this was before the two judges.  At pages 33 to 36, the appeal book before the two judges relates a succession of judicial decisions that give foundation to the claim of subversion.  There is no suggestion that the problem suddenly stopped after I was jailed in 1991.  Rather, the statement at page 35, from line 42, that the Victorian legal profession was reformed by the Legal Practice Act 1996 suggests just the opposite.

But most damning of all ‑ and this again was before their Honours ‑ is the Law Institute Journal report and photographs of a Law Institute get‑together with judges held on 12 August 1992, more than four months after 8 April of that year when Justice Hayne became a Supreme Court judge and only about eight months after I was released from gaol, eight or nine months.  On that report there is a photograph of the new Chief Justice seemingly posing for the photograph.  On 8 December 1988 he was a judge of the Full Court that, as both the statement of claim and my summary of argument allege, failed to act independently and impartially.  If he accepted the hospitality of that get-together, he was almost certainly accepting the fruit of what I allege is an improper approval by his predecessor of Institute counsel rules setting the practising fee that the Institute diverted from statutory functions to its private activities.  So the message of that photograph is that under the new Chief Justice, the Institute can expect business as usual.  That is borne out by the report of the Institute President’s address.  He said the annual get-together:

is often the only means available to us to express in a tangible form our appreciation of the close relationship we enjoy with the judiciary –

and it goes on:

Certainly, in recent times there have been some opportunities for us to express our support for the judiciary in a public way.  I have issued public statements in opposition to the suggestion that there be a judicial ombudsman, and in opposition to the suggested means of fixing judicial salaries, both being in my opinion totally unacceptable encroachments upon the independence of the judiciary.

Then comes this, I call it a punch‑line, sir:

But of course, press releases are mere window dressing.  What really counts is what happens behind the scenes.  In this regard, it seems Institute representatives can gain immediate access to virtually any member of the bench if an issue of importance to the profession arises, and it also seems that when we are given such access, you are all extremely generous with your time.

A good example of the “behind the scenes” contact referred to is given at page 34 of the appeal book from line 26 in the account of the furtive manner in which the Institute had the first rule fixing the practising fee approved by the former Chief Justice in 1987.  If you read that, you will find that I specifically asked the Institute to let me know of any submission by it to the Chief Justice so that I could put in a contrary viewpoint but the Institute did not tell me and the rule was approved by the Chief Justice without any submission by me being before him.  Then, of course, in subsequent years after he got a submission, he continued to make the approval.

So the test is, would a fair minded person informed of these circumstances reasonably suspect that the judge has prejudged or might prejudge the case?  In my submission, not only would he suspect that the judge might prejudge, he would have to think that the judge had prejudged.  The judge said he had read the appeal book.  He was invited to consider whether he should feel embarrassed and his answer was:

There is nothing of which I am conscious that would present any embarrassment to me.

This really amounts to a rejection of my claim that the Supreme Court of his era was subverted and that claim is quite basic to my case.

It is not often, your Honours, that the judges of a court have get‑togethers like this with a party that appears before it on a fairly regular basis, and a party which had asked the court to gaol me and disbar me.  Normally such conduct would probably be considered judicially inappropriate, but for some reason in Victoria, for quite a few years, this was considered quite normal.  Probably in the early days when the Institute was fairly strictly a regulatory body, that was understandable and appropriate, but by the time I was dealt with, it had become quite a vast enterprise with interests that went well beyond regulation of the profession and this sort of conduct had by that stage, in my submission, become inappropriate.

GLEESON CJ:   Mr Little, you have been proceeding with your submissions on an assumption which if believe to be appropriate, but I had better just confirm it with your opponent that we have before us and have read your affidavit of 19 June 2000 and Ms Macdougall’s affidavit of 22 March 2001.  Are you agreeable to us proceeding on that basis, Mr Marantelli?

MR MARANTELLI:   Yes, your Honour, I have both of those documents.

GLEESON CJ:   Yes, thank you.  Yes?

MR LITTLE:   And, of course, the rest of the appeal book.

GLEESON CJ:   Yes, quite.

MR LITTLE:   That is really all that I want to say, your Honours.  As I indicated initially, I do question the wisdom of Justices Hayne and his brother judge who was on the Bench on that occasion sitting on this occasion.  I notice in the House of Lords case, the Pinochet Case, that the second House of Lords, the House of Lords that considered the question of bias of the particular Lord was a totally different one from the House of Lords that made that first decision and I must say I had hoped on this occasion that I would be appearing before a fresh Bench.  Thank you.

GLEESON CJ:   Thank you, Mr Little.  We do not need to hear you, Mr Marantelli.

This is an application to re‑open a previous application for special leave to appeal, the previous application having been dealt with by Justices Hayne and Callinan on 26 May 2000.

No material has been put forward which warrants re‑opening of the previous decision and the application is dismissed with costs.

We will adjourn until 2 pm.

AT 12.59 PM THE MATTER WAS CONCLUDED