Maclennan v Stollznow

[1998] HCATrans 324

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S45 of 1998

B e t w e e n -

LINDEN JOAN MACLENNAN

Applicant

and

ALEXANDER STOLLZNOW

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 SEPTEMBER 1998, AT 12.16 PM

Copyright in the High Court of Australia

MS L.J. MACLENNAN appeared in person.

McHUGH J:   Just take a seat for the moment.  There is no appearance at the moment for the other side.  Perhaps this matter could be called outside three times.

The Court was informed that there would be no oral submissions on behalf of the respondent but I thought it appropriate to have the matter called. 

Yes, Ms MacLennan, would you proceed.  Now, do you understand the procedure is that you have 20 minutes to put your submission and you carry on from there.  If you feel there is any matter that you want some assistance, do not hesitate to ask.

MS MACLENNAN:   Thank you.  My complaint is that I was denied the opportunity to speak and denied the opportunity to present my new evidence.  Justice Powell did not invite me to speak.  He asked Mr Bilinsky and Mr Gourlie to speak and they then had an adjournment of about three or four minutes and came back and made a judgment.  They knew I was unrepresented; did not offer me any assistance; and they knew I was uncomfortable in the surroundings and just basically ignored me in the court:  listened to what Mr Bilinsky and Gourlie had to say; made a judgment and denied me my right of being heard.

McHUGH J:   The problem is that - if you look at page 38 of the application book which contains the transcript, his Honour does tell you the problem that you have and you make a response to that.  You speak, at line 23, that the defendant had incorrectly done your tax.  You make some other comments and then you have Mr Bilinsky speaking on the following pages, and Mr Gourlie.  Mr Gourlie was your solicitor at one stage, was he not?

MS MACLENNAN:   Yes.

McHUGH J:   And then on page 41 you again speak and again on page 42.  So, it is not really accurate to say that you were not heard.  You were heard but, any way, you carry on.

MS MACLENNAN:   I was not actually given any assistance at the time and actually when I was in the court I was in tears and they knew I was in discomfort and did not offer me any assistance, and looked to Mr Bilinsky ‑ ‑ ‑

McHUGH J:   Unfortunately, it is not the function of courts to be offering assistance.  In criminal cases judges have an obligation to give some assistance to accused persons but in this country civil litigation is basically adversarial litigation, that is, it is one party against the other and depending on the individual judge, he or she may give some assistance to a litigant in person but it is very much a contest between private parties and judges have to stay out of the arena.  In fact, it has been held if a judge interferes too much assisting one side or the other, it is a ground for setting aside his or her judgment.  So, it is a fine line here.

Having said that, can I go to the real substance of the matter and that is your complaint seems to be that you have this further evidence.

MS MACLENNAN:   Yes.

McHUGH J:   Now, you put a particular interpretation on it.  That may or may not be disputed but one thing that is put against you in the other side’s submissions is that that evidence was not put before the Court of Appeal; it was not before them at all.  Do you accept that?

MS MACLENNAN:   We never actually had a hearing in the Court of Appeal.

McHUGH J: No, I know, but the difficulty is that so far as this Court is concerned - and perhaps it does not really make much difference at the end of the day, having regard to what you want to argue - is that we do not, by our rules, accept new evidence in this Court. We only decide cases on the evidence that was in the court below. So, a party cannot come up to this Court and say, “I’ve got new evidence.” We do not accept that because under the Constitution we hear an appeal from the court below and we have to see whether their decision was right or wrong on the evidence they had.

It may not cause or be fatal to what you want to put because your point, as I understand it, is that you really did not have an opportunity to put your case.  That is your key point, is it not?

MS MACLENNAN:   Yes.

McHUGH J:   In what respects do you say that you were not able to put your case for an adjournment?

MS MACLENNAN:   I was not actually given the opportunity to explain properly what the new evidence was.  To be perfectly honest, by the time Mr Bilinsky and Mr Gourlie were being asked questions, I did not know where to put my hand up, so I left it unless I was asked a question.  My new evidence relates to exhibit C of the Supreme Court hearing of 16 May 1997 and the new evidence is actually part of what should have been in the exhibit, and that is the complaint, that it was never there; it was never put in in evidence as they said it was.

On page 39 of the application book, Claude Bilinsky relates to that and says that it was there “in evidence”.  Well, if we look at the pages marked ‑ ‑ ‑

McHUGH J:   Sorry, which line is this?

MS MACLENNAN:   I guess it is about line 33 on page 39.

McHUGH J:   Well, he says:

The documents relating to the trading I think are actually in evidence, we produced masses of documents - - -

MS MACLENNAN:   Yes.  Well, the last page of the application book there is a document that was not in exhibit C.

McHUGH J:   The last page of the application book, yes, of the “Trading ‑ ‑ ‑”

MS MACLENNAN:   And they relate to Eurodollar trades where the exchange rate between the Australian dollar and the US dollar was doubled.

McHUGH J:   Yes.  But, you see, these points really seem to have nothing to do with the way the Master approached the case in any event.  I know in your application you complain that these matters go to credibility but in so far as credibility was an issue, you seem to have succeeded on most of the issues of credibility, that in terms as to whether or not money was a gift or a loan, for example, you basically succeeded on those issues.

On reading the judgment - and I have read it several times - it seemed to me that his basic approach was that you were two people who kept separate accounts and you were going your own way and, as it turned out, you made a wrong decision at one stage.  You continued on, whereas your then partner went the other way and he ended up better off than you are and that being so, there was no basis for an order under the legislation, or relevant order any way.

So that this new evidence would not have affected the result in any event.  That seems to me the difficulty that you had in the Court of Appeal.  Just take your time thinking.  I will not keep you to your strict 20 minutes here because I have been asking a lot of questions and saying a lot of things to you.

MS MACLENNAN:   Sure.  I actually do think that bringing this new evidence in does relate to the Master’s decision on his credibility and I think that if I could have the opportunity for that to be heard again - if they intended to deceive the court, and I have not the opportunity to prove that they did, I think that I deserve the right to be heard again.

McHUGH J:   Many people think that in some way - some people think this Court is some form of super legislature and another view is that the Court is there to correct any perceived error in the courts below.  Unfortunately, neither proposition is correct.  There are hundreds of thousands of cases heard around Australia each year.  This Court can only hear about 100 of them and even if we think there is some error in the court below, it does not necessarily mean that we would grant leave to hear it.  You may have heard in the last case that counsel were seeking to say, “Well, this is not a suitable vehicle even if there is error”.  It was not important enough.  It was too - and he was appearing for the Water Board.

Now, here, this is a very individual case.  So, you have real problems about that to begin with.  This Court could not possibly deal with every case where somebody says that further evidence should have been admitted into the particular case.  There has to be an end to litigation.  But could you take me to the judgment of the Master where you say, accepting what you say about this new evidence, it is arguable that it would have affected his view of the case?  You see, that is what you have to show.  You really have to show that this new evidence is so convincing that there is a high probability or at least a rational probability that it would have affected the result of the case.

MS MACLENNAN:   Well, if the evidence was there in the first place - well, we did not actually know that it was not there until I went into the Registry and had a look at the document.  If we had have known it was not there in the first place ‑ ‑ ‑

McHUGH J:   But, see, one problem that you had before the Master was that you, yourself, had not put before him your own assets and your own earnings over the relevant period.

MS MACLENNAN:   I know there was a time where I was supposedly asked to supply documents which I was never asked for by Mr Gourlie, my previous solicitor.

McHUGH J:   That may be the case but, for example, if you look at page 10 of the book, the Master says, line 24:

The plaintiff’s approach to the case is to suggest that this is one where it is appropriate to look at the assets of the parties on a global basis and she submits that as a result of her contributions and expectation interest to which I will refer later, that it would be appropriate to grant her one half of the assets which the defendant now owns.  This approach is somewhat difficult when the plaintiff herself has not put on evidence of her current asset position.

Now, that is one ground, and then over on page 11, at the top of the page, the Master says:

In the present case there is a marked absence of any jointly acquired assets.  The parties never had a joint bank account -

et cetera, et cetera.

The only area where there was some intermingling of financial matters concerned the payment of rent and household expenses.

So your case, it seems to me, to have failed simply on the basis that, in effect, you and your then partner conducted independent financial arrangements, apart from this question of rent and some household expenses, and it was not an appropriate case for making an order.

CALLINAN J:   He also seemed to be impressed by the fact that it was not a very long relationship, I think.  He said “four years”.  I know your evidence was six years but - - -

McHUGH J:   But you were accepted on that.

MS MACLENNAN:   It was a six-and-a-half-year relationship.  It was about four years as a de facto.

CALLINAN J:   Yes, but that is still, as the Master said, relatively short.  I think that is just another factor that he took into account and your fresh evidence, I do not think, would have any bearing on that.

MS MACLENNAN:   Well, my argument is that I was not allowed to produce that evidence and based on that, that I think that the credibility of Mr Stollznow is something that perhaps should be questioned again.

McHUGH J:   But you cannot - see, litigation has to come to an end and the general rule is that parties have to produce their evidence all at once.  They cannot keep coming back.  Litigation is expensive, it is a terrible stress on the people that are involved.  No doubt, this has been extraordinarily stressful for yourself.  If you were here in the first case that we heard today concerning the custody of a child, there was an application for a new trial on the basis of further evidence, and that was rejected in the court below and we refused special leave.  But it does not seem to me that credit had anything to do with the decision in this case.  In so far as there was any issue of credit, the Master seemed to have accepted your evidence in preference to Mr Stollznow.  He made some specific statement about each of you.  He said:

The defendant I thought tried to give his evidence in a dispassionate manner.  There was nothing in the way he gave his evidence which would indicate that he was not endeavouring to be truthful.  Similarly the plaintiff I also thought from my impression of her in the witness box tried to give accurate evidence.

So, if you are right about this credibility, it may be that it does affect his credit, but credit did not seem come into the end result of the case at all.  The case did not turn on the acceptance of the defendant’s evidence over yours.  It turned on what the judge or the Master called “the objective facts” which were mainly the question of how you ran your financial arrangements.

Any way, you carry on.  The problem, it seems to me from your point of view, Ms MacLennan, is this, that you are out of time in the Court of Appeal.  The judges were not prepared to give you the adjournment and although they are not very explicit as to what the basis of it is, they just simply say, at page 46, that, “No appeal books having been filed”, it was not an appropriate case.  At page 47:

We have now had an opportunity to read, and consider, in some detail, the judgment delivered by the Master on 17 June last.  Having done so, I have concluded that, in the light of the Master’s findings, there is no real prospect of the appeal succeeding if it were permitted to proceed to a final hearing and for that reason I would propose that the appeal be dismissed for want of prosecution.

So, your problem was that the appeal had not been prosecuted.  Then when the judgment of the Master was studied, the judges took the view that you had no prospects of success.

MS MACLENNAN:   Where is that?

McHUGH J:   That is at page 47, line 6.

We have now had an opportunity to read, and consider, in some detail, the judgment delivered by the Master on 17 June last.  Having done so, I have concluded that, in the light of the Master’s findings, there is no real prospect of the appeal succeeding if it were permitted to proceed to a final hearing and for that reason I would propose that the appeal be dismissed for want of prosecution.

So, you have got this background of delay in prosecuting the appeal and then the court says, “Having read the judgment, there’s no real prospect of its succeeding and it’s just a waste of time for it to continue in the list in those circumstances.”  Now, that does not happen every day but it happens often enough that orders like this are made on that particular basis.

MS MACLENNAN:   On that particular day in court when Mr Gourlie was called in, there were several letters that they referred to about the costs.  Round about that time Mr Gourlie had spent two months in Brisbane on another case and there were several letters backwards and forwards from his other partner in Sydney.  My appeal books were not even ready.  I had no knowledge that there was a hearing on 19 March or even - until the day that there was actually a callover, I think, on 19 Feb fixing the court date.  I had no correspondence relating to that until later in Feb.  By the time that Mr Gourlie came back, it was too late to get the appeal books ready any way.  His partner handed me the documents the day before, 5 March, the day before the appeal books were supposed to be ready.  They suggested that I was not paying the fees.  We had an agreement that I would pay costs at the outcome.

Nothing was done and all the delays were due to my solicitor being negligent.  So that when I got to court I was there by myself.  That is another problem I actually had.

McHUGH J:   I noticed somewhere in the material that there was some talk that Mr David Bennett, now the Solicitor-General of Australia, might be appearing in the case.  I read that somewhere or other, I think, appearing for you.  Did I not read that somewhere or other?

MS MACLENNAN:   I actually went and saw him.  I do not know who said that.  Maybe I did.

McHUGH J:   I read it somewhere in this material.  I thought it was on the basis that as long as - - -

MS MACLENNAN:   No, that was Mark Trench.

McHUGH J:   Mark Trench, was it?

MS MACLENNAN:   And we actually had a hearing date on 19 March that I was not aware of until two weeks before.

McHUGH J:   But, see, the fact is that these are complaints you have against your solicitors and from the court’s point of view and from the other side’s point of view, your opponent’s point of view, the fact was that the case was just not ready for hearing.  I noticed in the course of your statement that you said you had paid $12,000 at the beginning of 1994.  No, that you agreed - - -

MS MACLENNAN:   No.

McHUGH J:   At page 42, line 35, you say:

This matter of the $12,000 costs we agreed in the beginning in 1994.....would be paid at the end.

MS MACLENNAN:   It was not actually - that might be a bad translation in the transcript.  There was never a costs agreement and the agreement was that we would pay on outcome.  So, there was never actually anything in writing.

McHUGH J:   No.

MS MACLENNAN:   And all the way along - the reason everything was delayed was because, obviously, they realised they did not want to be doing it for nothing.

McHUGH J:   No, I understand that.  Ms Maclennan, I know that you obviously feel disappointed - perhaps that is not putting it strongly enough about it - but having read the judgment as sympathetically as I can from your point of view, I think your appeal was bound to fail and that this additional material, even if it had been put before the Court of Appeal, would not have made the slightest difference; that you would have lost; you would have had cost orders made against you for hearing days.  There are really no grounds for a special leave application to this Court.  There really is not.  It is not a case for special leave.  I would have to say, speaking for myself at the moment, it seems to me that the decision below was correct on the materials before the judge, or at least that was a view that was open to them to take in the exercise of their discretion.  I just do not think there is -

well, I am certain there is not a case here.  I have read your papers and I have listened to you.  Is there anything further you want to put?

MS MACLENNAN:   No.

CALLINAN J:   Yes, I agree with Justice McHugh’s remarks.  We have looked at it carefully, Ms Maclennan and, frankly, I do not think you would have any chance at all of winning an appeal, even if we were to give special leave; I really do not.

McHUGH J:   Thank you, Ms Maclennan.

This application is dismissed.  There is no reason to doubt the correctness of the decision given by the Court of Appeal in this matter.

Adjourn the Court.

AT 12.45 PM THE MATTER WAS CONCLUDED