Little v The Governor of Pentridge Prison

[1991] HCATrans 341

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M59 of 1991

B e t w e e n -

JOHN DAVID LITTLE

Applicant

and

THE GOVERNOR OF PENTRIDGE

PRISON

First Respondent

ROBERT JOHN ALBERT CORNALL in

his capacity as Secretary of

the Law Institute of Victoria

Second Respondent

Application for bail

Little 1 26/11/91

DAWSON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 26 NOVEMBER 1991, AT 9.42 AM

Copyright in the High Court of Australia

MR J.N. ZIGOURAS: If Your Honour pleases, I appear for the

applicant, John Little. (of J.N. Zigouras & Co)

MR B.M. DENNIS: If Your Honour pleases, I appear on behalf

of the first-named respondent, the Governor of the

gaol. (instructed by the Victorian Government

Solicitor)

MR G.M. RANDALL: If Your Honour pleases, I appear for the

second-named respondent, Robert John Albert

Cornall. (instructed by Andrea Woolhouse)

HIS HONOUR:	Mr Zigouras?
MR ZIGOURAS:	Your Honour, I have a summons -that list of

documents that are filed with you - the summons
dated 9 November 1991; an affidavit by myself of 20

November; and there is the affidavit of John David

Little dated 19 November 1991.

HIS HONOUR:  Yes, I have all of those.

MR ZIGOURAS: And the exhibits, Your Honour: exhibit 1 is

the summons ....... Victoria dated 22 May 1991 and

exhibit 3 is the judgment of His Honour

then there is exhibit 2, the summons by John David

Mr Justice Phillips dated 7 November 1990;

exhibit 4 is the affidavit of John David Little

sworn 19 November 1991 and the summons of

4 November 1991. Appended to that also is an

affidavit of Kim Galpin sworn 4 November 1991.

Exhibit 5 is John David Little, which is a

committal warrant. Exhibit 6 is an affidavit of

John David Little dated 19 November 1991; appended to is a judgment of the Full Court of His Honour

Chief Justice Young and Nathan, and exhibit 7

attached to that affidavit is a notice of appeal

which has been filed with the Court.

HIS HONOUR:  Yes. Well, I have read those papers.

MR ZIGOURAS: Yes, Your Honour. I have nothing further to

say except that Mr Little did give me a summary of

various authorities concerning this application but

on perusing that it seems to me that he has covered

that area in his affidavits and in the various

exhibits.

HIS HONOUR:  We are now dealing with the application for

bail, in effect.

MR ZIGOURAS:	Yes, I would think that is - - -
HIS HONOUR:	The summons does make application for the

applicant to be granted leave to appear on his own

Little 2 26/11/91

behalf but that, of course, cannot be whilst you

are the solicitor on the record.

MR ZIGOURAS: Exactly, Your Honour.

HIS HONOUR:	So, we can disregard that.
MR ZIGOURAS:	Yes.
HIS HONOUR:	In fact, we have to. Now, the application for

bail is made on one basis. There is certain
difficulties about it; the first is that this is a

civil proceeding, really, and it may well be that

the application is really not for bail but for a

stay of execution of the order made below.

MR ZIGOURAS:  I should indicate that those documents or the

greater bulk of them were drawn by Mr Little and we

are attempting to assist him by giving him

representation. It strikes me, Your Honour, that

there is a series of authorities quoted in

volume 32 of the Australian Digest concerning

habeas corpus. As I see Mr Little's argument, he

is corning under that heading to seek bail in which

there are some authorities in the digest suggesting

that - - -

HIS HONOUR: Well, you see, it is not an application for

habeas corpus. That was an application which was

made to Mr Justice Phillips and refused, and then

there was an appeal to the Full Court which was

dismissed and what Mr Little is seeking now is

special leave to appeal from the judgment of the

Full Court so that it really is just a question of

that judgment and the order which was made by - - -

MR ZIGOURAS: His Honour Mr Justice McGarvie -

HIS HONOUR:  - - - Mr Justice McGarvie because that is the order which has practical effect at the moment.

MR ZIGOURAS:	Yes.
HIS HONOUR:	Now, what you would really be seeking is to

stay that order, I suppose.

MR ZIGOURAS: Well, yes, Your Honour. That would be my

application but Mr Little's application is slightly

different to that and I do not know that I have got

real instructions to - - -

HIS HONOUR: Well, the fact that it is in the form of an

application for bail need not be an insuperable

difficulty. It is just a matter of form. But

there are other difficulties about staying the

execution. That is an order that is not generally

made by this Court, that is to say, it is only

Little 3 26/11/91

made in exceptional circumstances and you would

have to demonstrate that there are exceptional

circumstances to me.

MR ZIGOURAS:  The only authority that I can remember of this

Court is the Tait case where His Honour

Chief Justice Dixon - was a rather extraordinary

case.

HIS HONOUR: Well, yes, that was to preserve the

subject-matter of the action and, of course, was an

exceptional case too.

MR ZIGOURAS: Yes, very exceptional.

HIS HONOUR:  And there have been orders made on limited

occasions. But in this case the period of

committal to prison will end on Friday.

MR ZIGOURAS:  Friday. Mr Little, in my instructions from

him, is concerned that if that term ends then he

may not have anything really substantial to appeal
about because the terms of the order have been
complied with, namely, that he has completed his

term of imprisonment.

HIS HONOUR:	Yes.
MR ZIGOURAS:	And he has adverted to that in some of his affidavits saying that he requires that portion of
the, shall we call it, penalty to be left over so
that he has got some substantial basis to argue the
matter. Otherwise, the Court could well say, "Well, what are we arguing about? There is nothing
here to really worry about.  The matter is
completed and finished."
HIS HONOUR:	But it is substantially completed now, is it

not?

MR ZIGOURAS:  Yes.

HIS HONOUR:	In a matter of two or three days, and you would have to convince me that it was sufficiently
exceptional to - - -
MR ZIGOURAS:	The only thing I can bring to your attention

is that he is a solicitor who had been practising

for over 30 years; that he now is in prison and

that this is rather exceptional in our community,
that legal practitioners are serving a term of

imprisonment for what he calls "a matter of

principle". There is no criminal content in this

matter at all, or anything else which is abhorrent

to the community.

Little 4 26/11/91

HIS HONOUR: Well, no one is suggesting there is. In fact,

that was the point I raised with you.	It is a
civil matter.

MR ZIGOURAS: It is a civil matter, and that is an

exceptional situation for anyone to be in gaol for

a civil matter and I would argue that was an

exceptional situation. But the question of the

penalty, I cannot take that any further. As you

have pointed out, Your Honour, in about two or

three days and he will be out. But it is an

exceptional situation; that this person feels

aggrieved in a civil matter to the extent that he

has now served almost three months imprisonment and

this is not the first time that it has occurred.

It has occurred previously also, the same sorts of

disputes, and that is as far as I could take it,

Your Honour.

HIS HONOUR:  Yes, I take that point. The other thing is, of

course, that he would have to establish some real

prospect of success in his application for special

leave.

MR ZIGOURAS: Yes. Well, I think that onus will have to be

left to him. I do not think it is a point -

HIS HONOUR: Well, Mr Zigouras, you are appearing for him.

MR ZIGOURAS: Yes, Your Honour.

HIS HONOUR:  You cannot leave it to your client, you have a

duty to conduct the case on his behalf if you are

appearing for him.

MR ZIGOURAS: Yes, Your Honour, I appreciate that comment.

The argument that he is running is the fact that

the plaintiff, or the second-named respondent,

attended before His Honour Mr Justice Southwell

oral leave to make an application which was granted

and then an application was made by the

second-named respondent before His Honour

Mr Justice McGarvie to vary the previous order.

What Mr Little argues is that then nullifies the

previous order, that he is not therefore properly

held or properly in gaol, and that is the range

that he refers to in his affidavits.

HIS HONOUR:  Yes, and that is the argument on which you

rely, is it?

MR ZIGOURAS:	Yes.
HIS HONOUR:	I see. Well, is there anything more you want

to say?

MR ZIGOURAS:	No, Your Honour.
Little	26/11/91
HIS HONOUR:	Thank you, Mr Zigouras. Mr Dennis?
MR DENNIS:	Your Honour, my appearance on behalf of the

first-named respondent is essentially a submitting

appearance and the concern that has been in the

previous matters before Mr Justice Phillips and
before the Full Court, where some question about

the validity of the warrant on which he was held

might have arisen, that has been the Governor's

principal concern. But so far as the question of

staying execution is concerned, my instructions are

that the Governor has no position to oppose any

such application.

HIS HONOUR:	Yes.
MR RANDALL:	Your Honour, the position of the second-named

respondent is that it would neither oppose nor

consent. It would effectively say it is a matter

for the Court, particularly having regard to the

way in which this matter has commenced, that is to

say, that the imprisonment is really as a result of court action in terms of the finding of contempt of

court and the consequences of that. I have just

been turning over the consequence of whether or not

a stay really does have any effect because if it

were a stay of "execution", if one goes back to the order of His Honour Mr Justice McGarvie, the effect

of that order was to put a finite term - put a date

on what otherwise was an indefinite term. Neither

that order nor the original order of His Honour

Mr Justice Tadgell are under attack. It is purely

the habeas corpus order and that was dismissed.

One could have some difficulties seeing how one

could stay an order dismissing an application for a

writ of habeas corpus.

HIS HONOUR:	I do not think there is any limit to the orders for a stay that this Court can make in order to
preserve the subject-matter of the appeal and if it were necessary to stay the order that was made by
Mr Justice McGarvie, and there were grounds for
doing it, no doubt there would be power to do it. I do not see any difficulty about that. But it is
question of whether there are grounds. I mean, the
effect of the order is all but expired now.

MR RANDALL: Well, the basis of the attack that appears in

the material that is before the Court which goes to

the question of whether or not - effectively, what

is being argued is that the order of

Mr Justice McGarvie, of itself, has an operation which would have terminated the period of

imprisonment and it would be our submission that,

really, there is very little basis, indeed, there

is no basis for a submission that there is any

error contained within what was said by His Honour

Little 6 26/11/91

Mr Justice Phillips and by the Full Court on that

matter, namely, the mistake that Mr Little appears

to make in his affidavit, we would submit, is that

he has misconstrued a total order that contained

within itself machinery provisions when he says, "the only way that that could have been effected
would have been by appeal", and that is his

ultimate point here.	He says, "Well, that had to
be attacked by appeal."	We would say there is a

misconception inherent in that proposition, that it

is the order itself that contained the machinery

whereby His Honour Mr Justice McGarvie could make a

further order.

HIS HONOUR:	As I understand it, the only argument which is relied on at this stage is that the order of
Mr Justice Tadgell that there be a fine and, in default, imprisonment until further order is spent
when a further order is made.
MR RANDALL:	Yes.
HIS HONOUR:	But no other argument has been relied on.
MR RANDALL:	That is as I understand it. We say that that

argument on analysis really has no basis and it is

misconceived and that really goes to the second

point that was raised by Your Honour as to what
prospect there might be of a successful application

for special leave. We are in a position,

particularly in this proceeding, where there is no

right, if I can put that, in the second-named

respondent that this ought to be preserved.

HIS HONOUR: Except the original order, that is, the order

of Mr Justice Tadgell, which is the basis of the

whole proceedings, was an order which was sought by

you.

MR RANDALL: Certainly it was, Your Honour, and that, of

course, was the only method of enforcing the order

of the court.

HIS HONOUR:	Yes.
MR RANDALL:	Otherwise, the orders made are of no effect and

consequence. So, we are unlike many respondents to

appeals where there is a significant interest to be

argued about or preserved.	We are not in that
position at this point of time.	So that, again,

like my learned friend Mr Dennis, we are here in a

submission role rather than an aggressive adversary role. That is about all I can say. If Your Honour

pleases.

HIS HONOUR:  Thank you, Mr Randall. Mr Zigouras.

Little 7 26/11/91

MR ZIGOURAS:  I have nothing further to say, Your Honour.

HIS HONOUR: Well, I will give this matter some short

consideration and I will stand it down until

11 o'clock.

AT 9 . 5 8 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.07 AM:

HIS HONOUR:  Yes, Mr Randall?

MR RANDALL: Sorry, Your Honour, before Your Honour delivers

reasons for judgment, there was one matter that my

learned friend, Mr Dennis, and myself wish to raise

and it is this: in the course of my submissions, the issue of there had been only one ground of

appeal or sought to be one ground of appeal as

distinct from there really being only one issue.

Mr Little's affidavit did, in fact, seek to address three issues. My perception was that having regard to the reasons of the Full Court, two of those,

really, did not lie and I was concerned that there

may have been some inadvertent - - -

HIS HONOUR:  Mr Zigouras made it quite clear that the one

matter which he relied upon was the affect of the
order of Mr Justice McGarvie, having regard to the

form of the order of Mr Justice Tadgell, in

relation to prospects of success on an application

for special leave. That is so, is it not?

MR ZIGOURAS: Yes, Your Honour.

HIS HONOUR:  So, that is the only one matter which we need

address ourselves.

MR RANDALL: Well, we were just concerned that it may have

been that I had stated there was only one ground of

appeal and, in fact, that is not accurately

reflected in what was in the affidavit but it
accurately reflects what was said, I think, by the

Full Court and what Mr Zigouras said.

HIS HONOUR:  No, but Mr Zigouras has made it clear that in

addressing the question of prospects of success in

the application for special leave to appeal, the

argument which he relies upon, and the only

argument which he relies upon is that which I have

just mentioned. That is so, is it not?

Little	26/11/91
MR ZIGOURAS:	Yes, Your Honour.

MR RANDALL:  We are reassured by that. If Your Honour

pleases.

HIS HONOUR:  The applicant for special leave to appeal seeks

bail by a summons dated 21 November 1991 taken out

by his solicitors, Messrs J.N. Zigouras & Co.	By
the same summons, the applicant seeks leave to

appear in person to make the application for bail

but, as I have pointed out to Mr Zigouras who

appears for the applicant, he is not entitled to

appear in person whilst he is represented.

The application for bail also appears to be

misconceived. The matter is a civil matter and the

committal of the applicant to prison was by reason

of a civil contempt in failing to obey an

injunction against him granted by the

Supreme Court. At common law, a court cannot grant

bail to a person imprisoned in the execution of a

judgment or conviction for any offence (see
Chitty's Treatise on the Criminal Law, 2nd ed.

(1826) Vol. 1, p. 93). Even in the exercise of the

inherent jurisdiction of this Court, I do not think

that it would be appropriate to grant bail in a

matter such as this.

However, I am prepared to treat the

application as an application for a stay of

execution of the orders made by Mr Justice Tadgell

on 11 June 1991 and Mr Justice McGarvie on

2 October 1991. The order made by

Mr Justice McGarvie constituted a variation of the

previous order made by Mr Justice Tadgell. The

order made by Mr Justice Tadgell was that the
applicant be fined the sum of $10,000 for contempt

of court and in default of payment within 30 days

that the applicant be imprisoned until the fine was

paid or until further order of the court. The

order made by Mr Justice McGarvie was that the

applicant be brought before the court on

29 November 1991 then to be discharged forthwith.

The period for which the applicant has been committed to prison has, since the order made by

Mr Justice McGarvie, almost been spent.	He is due
to be discharged on Friday.	The applicant

nevertheless wishes to stay the relevant orders for

the purpose of preventing his application for

special leave becoming academic.

It is well established in this Court that

pending an application for special leave to appeal,

a stay of the order made below will only be granted

in exceptional circumstances as, for example, where

it is necessary to preserve the subject matter of

Little 26/11/91

the application when there is a real prospect of

the application succeeding.

The subject matter of the application in this

case is the refusal of Mr Justice Phillips to grant

to the applicant a writ of habeas corpus and the

subsequent dismissal by the Full Court of an appeal

against that refusal. The subject matter of the

application is not the injunction which the

applicant failed to observe and which led to his

imprisonment.

In these circumstances, it seems to me that

the further imprisonment of the applicant is

something which is of relative unimportance since

he has little more than two days of a period of

approximately three months to serve. Of course, the

further period of imprisonment is of importance to the applicant to enable him to pursue his argument that the court below was in error.

The only argument relied upon by Mr Zigouras

as demonstrating the likelihood of success of the
application for special leave to appeal was the

argument that, since the order made by

Mr Justice Tadgell with respect to the applicant's

imprisonment was subject to further order, upon a

further order being made by Mr Justice McGarvie,

the order made by Mr Justice Tadgell was spent and

no longer operated to support his further

imprisonment.	I do not think that that argument
has any real prospect of success.	The order made

by Mr Justice McGarvie was made by way of variation

of the order made by Mr Justice Tadgell and was

within the contemplation of the expression "further

order".

In any event, there can, in my view, be no

doubt that there was jurisdiction in the court to

vary its own order, whether or not the order made

by Mr Justice Tadgell was expressed to be subject

to further order.

Accordingly, I must refuse the application.

Is there anything else, gentlemen?

MR RANDALL:	Your Honour, I am instructed to ask for costs.
HIS HONOUR:	What do you say, Mr Zigouras?
MR ZIGOURAS:	I have nothing to say about that, Your Honour.
HIS HONOUR:	Why should I make an order as to costs,

Mr Randall?

Little 10 26/11/91

MR RANDALL:  The respondents have been brought back to

Court again and have had to appear before

Your Honour.

HIS HONOUR:  But the respondent adopted a neutral attitude

towards the matter.

MR RANDALL:  I accept that, Your Honour, but the respondent

also, on the question of bail, did make the

submissions that, in fact, have found favour with

Your Honour as to the merit of the appeal.

HIS HONOUR:  Yes, but you adopted an attitude which prevents

you from saying that you won or lost.

MR RANDALL:	I take Your Honour's point.
HIS HONOUR:	No, I will not make an order as to costs.

MR RANDALL: If Your Honour pleases.

HIS HONOUR:  Very well, the application is refused.

AT 11.15 AM THE MATTER WAS ADJOURNED SINE DIE

Little 11 26/11/91