Mathews v National Australia Bank Ltd

[2005] HCATrans 1039

[2005] HCATrans 1039

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P64 of 2004

B e t w e e n -

DOUGLAS EDWARD MATHEWS

Applicant

and

NATIONAL AUSTRALIA BANK LTD

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 16 DECEMBER 2005, AT 3.27 PM

Copyright in the High Court of Australia

MR D.E. MATHEWS appeared in person.

MS P.E. CAHILL:   May it please the Court, I appear for the respondent.  (instructed by Jackson McDonald)

GUMMOW J:   Yes, Mr Mathews.

MR MATHEWS:   Your Honours, I refer to page 11 of the application book, paragraph 10 of the judgment by Master Newnes and it states that:

In my view it is clear that there is no evidence, as I have said, to support the allegations contained in the particulars that there was some agreement or arrangement between the fifth defendant and the police officers that only evidence of guilt would be produced. 

During my preparation, especially to appeal, I went down to the District Court and obtained the affidavit of Wendy Alison Calcott, which is at page 13 of the materials to be referred at the hearing and that is a copy of the customer record card, your Honours. 

I now refer your Honours to page 3 of the same material.  That is a complete copy of the customer record card which was in the brief of the DPP.  That also was not used at my criminal trial.  I now refer you to page 28 which is the statutory declaration during the interview with the ‑ ‑ ‑

GUMMOW J:   Were these matters put to the Court of Appeal?

MR MATHEWS:   No, your Honour, I discovered these after the judgment. 

GUMMOW J:   To put it more accurately, were these matters put to the Full Court in the matter that led to their judgment on 17 August 2004 against which this present application is brought?

MR MATHEWS:   No, your Honour, this evidence, the last one in particular, was discovered after the judgment.

GUMMOW J:   Of the Full Court?

MR MATHEWS:   That is right, your Honour.  I would then refer your Honours to ‑ ‑ ‑

GUMMOW J:   You should appreciate that we do not receive fresh evidence.

MR MATHEWS:   Yes, I understand that now, your Honour. 

GUMMOW J:   Your task is to explain to us, with such elaboration as you wish beyond what you have in your written submissions, as to why there is an error in the Full Court decision which is so significant that we should grant special leave to appeal.

MR MATHEWS:   I think the matters concerned are matters of facts which should not be the subject of a determination affidavit material.  As I have just pointed out, your Honour, that is all I can say, in my submission.  Thank you.

GUMMOW J:   Thank you.  We have carefully reviewed the written submissions in this matter.  We are, however, not satisfied that there are sufficient prospects of success in demonstrating any error on the part of the Western Australian Full Court to make it appropriate for us to grant special leave to appeal.  Accordingly, special leave is refused with costs.

The Court will now adjourn until Monday, 30 January 2006 at 3.30 pm in Canberra.

AT 3.33 PM THE MATTER WAS CONCLUDED