Norris & Anor v Illawarra Nespaper Holdings Pty Limited

[1999] HCATrans 322

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S42 of 1998

B e t w e e n -

GARRY NORRIS, GARRY NORRIS HOME IMPROVEMENTS PTY LIMITED

Applicants

and

ILLAWARRA NEWSPAPER HOLDINGS PTY LIMITED

Respondent

Application for special leave to appeal

GAUDRON J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 OCTOBER 1999, AT 11.31 AM

Copyright in the High Court of Australia

MR G. NORRIS appeared in person.

GAUDRON J:   Mr Norris, you are appearing for yourself and the company, I take it.

MR NORRIS:   Yes. 

GAUDRON J:   Is there any appearance for the - - -

MR NORRIS:   No appearance, I do not think, your Honour.

GAUDRON J:   Before you commence, Mr Norris, I should record that I have been informed that the respondent in this matter does not wish to be represented at the hearing of the application for special leave to appeal and will submit to any order of the Court save as to costs.

MR NORRIS:   Thank you, your Honour.

GAUDRON J:   Yes.  Well, you can commence.  You know you have 20 minutes.

MR NORRIS:   Yes, your Honour.

To make things a little bit easier, rather than I read right through this, can I give your Honours a copy of this to read?

GAUDRON J:   Yes, certainly.

MR NORRIS:   It is my submissions.  It is just in writing.

GAUDRON J:   Yes.  Well, you should draw our attention though to anything that you wish.

MR NORRIS:   Yes, I will, yes.  Your Honours, if I could just let you read it first and then I will draw the attention to it. 

GAUDRON J:   Yes, Mr Norris.

MR NORRIS:   Your honourable Justices, what the case really boils down to is that I was denied my right to a jury, my right to trial by jury.  My damages hearing was reduced to written submissions.  My legal counsel, for some unbeknown reason, omitted the damages that was inflicted upon myself and the company by the article that was written and, to date, the court – neither the courts below – any of the courts below have allowed me time to submit the damages that was incurred by my company and by myself in this matter.

Everyone is running around saying, in judgments and that, that there was no damage but no one has afforded themselves the time or - - -

GAUDRON J:   No one said there was no damage.

MR NORRIS:   Some presumed damage; presumed damage.  I think that they allowed me a paltry figure for, your Honour, the thrust of the thing being that my legal counsel were under strict instructions, on page 468 of my supplementary index book 2, you will find a written statement signed by a Justice of the Peace by an eyewitness that was with me at the time of my trying to instruct my counsel to ensure that they put the true damages before the court but it was a wasted effort on my behalf.  Counsel were quite determined that they were going to plead what they were going to plead and ever since I have not had the opportunity to plead my damages.  When I said that they have not been pleaded, I have just been called a liar and the issue has been ignored.

I believe as part of our democratic system that I am entitled to a fair trial and I do not believe that I have been given one as such with my jury being dispensed with.

GAUDRON J:   But your counsel - - -

MR NORRIS:   My counsel.

GAUDRON J:   - - - agreed to various courses being taken, did he not?  Your counsel at trial agreed to various courses being taken?

MR NORRIS:   Yes; not always under my instructions but, your Honour.

GAUDRON J:   Yes, but he agreed?

MR NORRIS:   To what?

GAUDRON J:   To the course that was taken?

MR NORRIS:   In respect to, your Honour?

GAUDRON J:   In respect to the discharge of the jury.

MR NORRIS:   Yes, he did that.

GAUDRON J:   And in respect to putting in written submissions on damages.

MR NORRIS:   He would not adhere to my instructions and put in the true written damages, your Honour.  No, he would not, and he would not adhere to my instructions in terms of the jury either.  I did not give consent for that jury to be dismissed.  Counsel took it upon themselves that that was in the best of my interests and what I am saying here is that – well, in both instances:  one on the written submission on damages, they have led the court to believe false and misleading information and omitting the true damages that were suffered, which I believed to be a criminal offence, perverting the course of natural justice, and at no time did he have my consent to consent to the discharge of the jury.

GAUDRON J:   You do understand, do you, that an appellate court can only intervene if you can point to an error of law.  In this case, you have to point to an error of law on the part of the Court of Appeal.  You do not obtain an appeal by pointing to the failure of your counsel to adhere to your instructions.  Courts are bound by the way counsel conduct the case, so you have to point to an error of law.  Do you follow that?

MR NORRIS:   Yes, I do follow that, but I thought in the procedural unfairness part of it, your Honour, in terms of the way the trial was run, that I am entitled to an appeal under a procedural unfairness that I was dealt with by the courts:  discharge of my jury; not allowing my damages - - -

GAUDRON J:   But you have accepted that your counsel agreed to that being done?

MR NORRIS:   No, I do not accept that, your Honour.  This is what this is all about and this is what it was all about at the appeals court too.  I do not accept that I consented to that.

GAUDRON J:   No, not that you consented to it, that your counsel agreed to it.

MR NORRIS:   I cannot be responsible for somebody else’s actions.  I can only instruct them as to my instructions.  I cannot be responsible for what – if somebody does not want to take my instructions and wants to go off on their own tangent, I mean, there is nothing that I can do about that.  What I am saying is that with the way that my jury was dismissed is a fundamental right to my democratic right to a fair trial and this is wrong.  Not only is that wrong but that took away from the court the availability of hearing my damages.  I cannot, again, be responsible for someone’s actions if they want to falsify the written submission on damages because the court did not have time to hear it.  I mean, if I had been sitting there and the court had time to

hear my case, then my counsel was telling them what damage that may have been inflicted, I am in the presence of them, then I can do something about it.  But the way this was handled, there was nothing that I could about it.

I brought it to the light of the appeal judges, only for them to ignore it.  They did not even make comment of it in their judgment.

GAUDRON J:   Yes.

MR NORRIS:   Well, that is about it, your Honour.  I cannot – apart from the submission there that I have given your Honours in writing and in terms that the illegal and improper actions that have been suffered by me in the general running of this case, I believe that I am entitled to leave to the High Court and hopefully I am entitled to leave to have my jury back for the issues that I sued for which was defamation and damages to myself and my company.  The defamation part was heard because the judge, before he took his long service leave, could squeeze that amount of time in but my damages have never been heard by the courts in this case.  I think that is grossly procedural unfair and I think it is a criminal act on behalf of my solicitors to which the courts to this day will do nothing about.

GAUDRON J:   It is not the function of an appellate court to arbitrate matters between you and your solicitor. 

MR NORRIS:   I appreciate that.

GAUDRON J:   You have other rights in that regard.

MR NORRIS:   Well, in that regard too, the proper authorities do not seem to be taking any great interest in the matter and I can only put that down to the defendant and who I am suing.  They are not a small – they do not come without influence.  Plenty of it too, your Honour.  What I am saying is I have been dealt procedurally unfairly with.

GAUDRON J:   Thank you, Mr Norris, we understand that.

It has not been demonstrated in our view that it is arguable that there is any error of law on the part of the Court of Appeal.  Accordingly, special leave must be refused.  It will be ordered accordingly.

Call the next application, please.

HAYNE J:   Just let Mr Norris get his books together, rather than crowd him out, as seems to be being done at the Bar table.

MR NORRIS:   I still say, your Honour, you are taking away a citizen’s rights by not giving us a fair trial.

GAUDRON J:   We understand that, but we have called the next matter, Mr Norris.

MR NORRIS:   I know you have, but I am just saying in conclusion ‑ ‑ ‑

GAUDRON J:   We understand what you are saying.

MR NORRIS:    ‑ ‑ ‑that is procedurally unfair to treat this matter in the manner in which this Court has handled it.

GAUDRON J:   We understand that.  Thank you.

MR NORRIS:   It is no good to run away and hide from these things because they will be back to haunt you.

AT 11.49 AM THE MATTER WAS CONCLUDED