O'Connell v Barnett

[2014] HCATrans 196

[2014] HCATrans 196

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M63 of 2014

B e t w e e n -

CATHY O’CONNELL

Applicant

and

GEOFFREY BARNETT

Respondent

Application for stay

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 8 SEPTEMBER, 2014 AT 9.31 AM

Copyright in the High Court of Australia

MS C. O’CONNELL appeared in person.

MR D. MASEL, SC:   If it please, your Honour, I appear with MR M.J. HOOPER for the respondent.  (instructed by Avant Law Pty Limited)

HER HONOUR:   Yes, Ms O’Connell.  You can come up to the lectern if you wish.

MS O’CONNELL:   Your Honour, I am here this morning – I have my mother and my eldest daughter, who took care of me after this operation.

HER HONOUR:   Yes.

MS O’CONNELL:   I am here this morning – it is regarding a stay.  My financial situation and my ex‑husband Michael’s financial situation was fully canvassed at the Supreme Court and covered in very, very lengthy affidavits.  I have just this morning received an affidavit from Ms Hughes.

MR MASEL:   Might I seek leave to file an affidavit sworn this morning, your Honour?

HER HONOUR:   Yes, I will just ensure that I have a copy.

MR MASEL:   Your Honour does not.

HER HONOUR:   Very well, so you are going to pass one up.

MR MASEL:   If we may provide a copy.

HER HONOUR:   If you just wait a moment, Ms O’Connell, I shall read this.

MS O’CONNELL:   Sure.  Your Honour, can I just say before you start it, this property was never mine to begin with and Ms Hughes was quite aware of that fact. 

HER HONOUR:   Which property are you speaking of now?

MS O’CONNELL:   There was a property in Vantage Point.

HER HONOUR:   Yes.

MS O’CONNELL:   Very lengthy affidavits and very lengthy financial statements were already submitted to the Supreme Court – 14 Vantage Point Drive is Michael’s property.  It is where he lives.  He was running a company at the time that he bought the property and it was on the advice of his financial adviser that the title be put in my name.

HER HONOUR:   Yes.

MS O’CONNELL:   It has never been my property.  I have never paid any repayments towards it.  I have never had any claim on it whatsoever and he had plans to transfer it back into his name over two years ago – the emails of which were shown to the court.  So Ms Hughes was very aware of that.  I have not done anything untoward.  It was something that he started to do two years ago.

HER HONOUR:   Yes, very well.  So that is the position with 14 Vantage Point, Burleigh Heads. 

MS O’CONNELL:   That is right.

HER HONOUR:   You are the sole registered owner.

MS O’CONNELL:   No, no, I am not the owner, your Honour.  The property was bought in my name.

HER HONOUR:   You are registered as the owner?

MS O’CONNELL:   No, I am not any more.  No, it has been transferred back into Michael’s name. 

HER HONOUR:   That is done, is it?

MS O’CONNELL:   Yes, it is done, yes.  There were plans to do it two years ago and the emails were shown to Ms Hughes as well as Michael producing all the bank statements to prove that he was the sole person responsible for that loan and he had solely been making all the repayments.

HER HONOUR:   Yes, I have just had a chance now to read this affidavit.  I will just complete that reading, just give me a moment.  Yes, thank you.  Yes, you may continue.  So that is the position with Burleigh Heads.

MS O’CONNELL:   That is right.  It was never my property and as I said, all the financial statements, the bank accounts and everything were shown to Ms Hughes to prove that it never had anything to do with me other than it was a tax thing set up by a financial adviser.  I am not sure, your Honour, if you want me to go to the property or the merits of my case.

HER HONOUR:   Well, as I understand it, today is not the occasion to deal with the merits of your special leave application.

MS O’CONNELL:   Okay.

HER HONOUR:   Today is just the occasion to deal with your stay application and my present understanding is that your stay application is in relation to the execution of costs orders made against you.  There have been costs orders, as I understand, in the County Court made against you and it is my understanding, but you may correct me if I am wrong about this, that those costs have been taxed and a warrant of seizure and sale has issued.  That is, I think, in relation to the Earl Street property.

MS O’CONNELL:   Yes, your Honour.

HER HONOUR:   The costs in the Court of Appeal also awarded against you have not yet been taxed.

MS O’CONNELL:   That is correct.

HER HONOUR:   You wish to, as I understand the evidence, review the costs in the Court of Appeal.  Is that right?

MS O’CONNELL:   Yes.

HER HONOUR:   That process is being undertaken at the moment.

MS O’CONNELL:   It is 24 October it comes up for review.

HER HONOUR:   Yes, very well.  So that is 24 October.

MS O’CONNELL:   There is one for the appeal on 23 September.

HER HONOUR:   Is there more than one review?

MS O’CONNELL:   The one on 24 October is for the County Court costs.

HER HONOUR:   So there is a review of those costs?

MS O’CONNELL:   Yes.

HER HONOUR:   Yes.

MS O’CONNELL:   They were grossly excessive costs that were charged and the one for the Court of Appeal I only received it just I think when I had finished writing my affidavit and that is up to – I think it is costing on 23 September.

HER HONOUR:   That is the ‑ ‑ ‑

MS O’CONNELL:   Supreme Court of Appeal costing taxation.

HER HONOUR:   That is the taxation in relation to the Supreme Court Court of Appeal.  Yes, I follow.

MS O’CONNELL:   That is correct.

HER HONOUR:   So review in relation to County Court costs 24 October and the taxation of the Court of Appeal costs coming up on 23rd September.  Yes, I see.  Yes.

MS O’CONNELL:   My understanding today was that in order to get a stay on my costs I have to prove special circumstances and also too to prove that my case does have great merit and that I believe that I have an exceptionally good chance of having this appeal overturned.  If I do not, I believe every person in Australia and every person in this courtroom needs to be fairly scared about going to hospital because it will mean that a consent form has no binding status whatsoever. 

I will go back to in relation to the stay.  There are two properties involved.  There is my family home – No 1, 11 Lincoln Place, Windsor.  That has been my family home since 1996.  My daughter – my youngest daughter is coming home from overseas and she is coming back to live with me.  All our possessions are there.  We have had it for 18 years.

Now, I married Michael over 10 years ago and he has been making all the mortgage repayments on that property since.  So it is in my name.  However, Michael has a very big, substantial equity in that place.  There are three mortgages against Lincoln Place, your Honour, and as I say this has all been very fully canvassed in very lengthy affidavits at the Supreme Court.  There is a mortgage on Lincoln Place.  There is a mortgage on Earl Street, the equity of which was taken out of Lincoln Place and there is also equity that has been taken out of it that Michael used to buy Vantage Point Drive.

The property that Ms Hughes has got the warrant out against is Earl Street.  Now, Earl Street we bought during my marriage to Michael.  Between 2006 and 2009, I think it was, Michael was a non‑resident of Australia for tax reasons.  He was working in New Caledonia and he was subject to tax under French law in New Caledonia.  It was on the advice of the financial adviser, because it was an investment property and that the rental income would have to be declared, that the property be transferred into my name, which it was.  However, I do not fully own the property.  It is in my name but Michael owns more than 50 per cent of that property because he has been making all the repayments on it. 

He has had plans for over seven years to build a house there.  The contract was signed well before any of these dealings with Ms Hughes even started.  They are laying the slab.  They are starting to build the house.  So it is fully mortgaged to the bank.  If it is sold it is subject to 50 per cent capital gains tax which means there will be no money left anyway because it is all owed to the bank.

As far as Lincoln Place, which is my home, there is a zoning anomaly there that runs through that house.  It is 76 per cent business one, 24 per cent residential one.  We have had ongoing talks with the Planning Minister, Matthew Guy, for the last seven years to try and bring the zoning anomaly of the 24 per cent in line with the B1 and I plan to run a shop there.  I did start – I actually registered a clothing line but because of the proceedings that have been against me I have been stuck in Australia since September last year.  I have lost all my superannuation fighting this case.  I have lost any savings I had and I have only been relying on my ex‑husband to support me.

HER HONOUR:   The Earl Street property, on one view, is that an investment property as that is normally understood?

MS O’CONNELL:   Yes, it is.  It is a vacant block of land at the moment, your Honour.  It only had a little old shack on it that was rented to backpackers and we had complaints that some of the walls were coming apart and we went in there and had a building inspector and it was condemned.  It was absolutely riddled with termites so we had no plans whatsoever of demolishing it but it had been condemned and it was not any use just sitting there so the property was bulldozed.  Michael decided that because the land was vacant, that he was not getting any income for rental, that he would advance his plans and he would start building the house.  Your Honour, I have submitted all the statements to the Court.  It is all fully mortgaged to the bank, totally and utterly mortgaged.

HER HONOUR:   Yes.

MS O’CONNELL:   As I say, Lincoln Place is my home.  If Ms Hughes was to come in and sell that at a fire sale there is over 900, nearly $1 million worth of loans against it at the moment anyway.  Your Honour, the whole point about this is what has happened to me is an absolute and utter grave injustice.  I do not understand – I have come to the High Court now.  I had a biased judge of the County Court who announced his wife was a nurse. 

No one has taken any notice of what I signed for.  I went to hospital and I signed for a minor operation.  I have the item number describing my operation.  I have the price I paid describing my operation.  I am just in absolute shock, horror and disbelief that it has even got to this stage.  It should never, ever have seen the inside of a courtroom.  To tell you - your Honour, have you got - you would have it.  There was a letter in an exhibit from Avant that you would have.

HER HONOUR:   Yes, you can read it out to me if you wish.

MS O’CONNELL:   Okay.  The most important thing about this one is – it is dated 13 September.  I will submit it to the Court.  Before I even got to court, I was told by Ms Hughes:

You should be in no doubt that if the trial goes ahead and you lose your case, we have explicit instructions to ask the court to order you to pay Dr Barnett’s legal costs.”

“You should also be in no doubt that we will pursue those costs including taking steps if necessary to have the properties you own in Melbourne sold to meet those costs”. 

But on the very next page - I tried on multiple occasions with Ms Hughes to settle this matter before it came to court – Marshall and Dent also tried under a letter of compromise – which is what Judge Saccardo asked her to do and she did that, but on the very next page it has got:

Dr Barnett gave you an information pamphlet about abdominoplasty.  This describes abdominoplasty (tummy tuck her words) and partial abdominoplasty (mini tummy tuck her words).  Dr Barnett explained to you that what he intended to perform was a “full tummy tuck” -

I said that is what I – I never ever consented to a full tummy tuck.  I said that is exactly what I have been saying he did for the last eight years so why are we even going to court.  You have just admitted in this letter to me what I have been saying for eight years.  Mr Barnett varied and changed a procedure.  I went into hospital for a very minor procedure of 30174.  He did 30165 and 30177.  He gave me a massive scar from hip to hip.  He removed a massive apron of tissue from me.  Your Honour, I could sit here for an hour and pull up of the things that I am sure you have ‑ ‑ ‑

HER HONOUR:   I have read the papers.

MS O’CONNELL:   Yes.

HER HONOUR:   I have seen photographs, pre‑operation and post‑operation so I have had the opportunity to do that.

MS O’CONNELL:   Sure.  So if you read through the transcript and you say Mr Barnett, where is this excess of skin I had, well you do not have one.  Well, why did you take skin out?  He took skin out because he did not know how to do endoscopic surgery.  When he took the subcutaneous tissue out he left all this lax skin so he decided to do a hip‑to‑hip scar but that was not what I went to hospital to have.  I went for plication of muscles from my public bone to my navel and to have a small scar revision.  I ended up with a major operation.  I had to be wheeled to the car in a wheelchair.  I was totally crippled and incapacitated.  I had to go and stay with my mother.  My father had to drill holes in a chair for me to even shower myself. 

Professor Marshall has given evidence that there was no need whatsoever for any removal of tissue and it is all about sophistication of surgery.  I spoke to a girl on Saturday night that had an umbilical hernia done and also had the muscles sewn together from her pubic bone to her navel nine years ago.  The doctor did it through her Caesar scar.  This was an operation that I never ever consented to and yet I have been treated like a criminal and now I am being threatened with losing my family home.  It is completely unjust, your Honour, what has happened.  It really is – completely and utterly unjust.

HER HONOUR:   Yes.

MS O’CONNELL:   The matter was taken to the Supreme Court and ‑ ‑ ‑

HER HONOUR:   I have read some of the transcript which has been exhibited and I have also read the judgment in the Court of Appeal.

MS O’CONNELL:   Sure, okay.  I think, your Honour, this Judge Mandie – he was quite critical ‑ ‑ ‑

HER HONOUR:   I have read what he said.

MS O’CONNELL:   Yes.  He was quite critical but I believe for justice to be done you cannot say “Oh, it’s unfortunate or it’s regrettable”.  I mean when a judgment is given there should be no error.  There should be no error.  It should be absolutely unequivocal that this was the right judgment to make and it was definitely not the right judgment to make for me because all of my pre‑op statements before the hospital - sub‑umbilical abdominoplasty, all of the post‑operation notes, the scrubbing nurse, the anaesthetist, they all say abdominoplasty.  That is not what I consented to.  He varied and changed the procedure.

I notice Mr Barnett is not here today either.  He has never turned up to any of the court proceedings except for the County Court, but even then it was dragged out and I was in and out of the witness box like a jack‑in‑a‑box waiting for him because he decided to take off overseas on a holiday to Turkey.  I have been told by Ms Hughes that it was Mr Barnett who did not want to settle the case.  That was sent to me in a letter by John Bell & Sons, but in my evidence it is not a doctor that decides for an insurance company to settle its claim.  It is normally the insurance company that decides whether or not they are going to settle the claim.

I feel that all of the things that have been done to me – Ms Hughes has made this a personal vendetta against me.  She has accessed gynaecological records that had nothing to do with this case.  She has rung my ex‑husband, who was Amelia’s father.  I do not even know how she found his name or phone number to track him down because he knew nothing whatsoever about these proceedings.  She has rung my doctors.  She has contacted my gynaecologist.  She has researched council files. 

I mean, this sort of behaviour is above and beyond the normal behaviour.  It has breached every bounds of confidentiality.  I mean, I have had a solicitor call me to say that she was discussing my case at a Christmas party last year.  I am just absolutely violated and mortified by what has been going on.  But I think the biggest travesty of justice is nobody is looking at what I signed for.  It was a binding consent form that was a contract.  It was a contract of what I consented for him to do, and he changed and varied that contract. 

So all I am saying, your Honour, is my case has a very, very good chance of appealing if somebody reads my documents and understands what I am saying and looks at what I signed for and looks at the Medicare description of what I signed for.

If my house is sold, I will never get it back again.  I have been there for 18 years.  I will lose any chance of ever having a shop there, which is what I have been working for for seven years, and as far as Earl Street, it is Michael’s.  He has been keeping me for over a year.  There is no money there.  If sold, it will be subject to capital gains.  The State revenue and the council have only valued it for 420.  So if you take the loan away from what it has been valued at and sold at - there is a builder involved now.  There is a binding contract and Michael has lodged caveats against both the properties to protect his equity. 

I do not know what more I can say, your Honour, except to present – I mean, I could stand here for an hour and present all the merits of my case to tell you why I have a very, very good case.  It is just mind‑boggling that it has got this far.  It should never ever, ever have seen the inside of a courtroom.  It has been dragged out since 2007.

I had a six per cent impairment from a medical panel.  I have Professor Donald Marshall, who is one of the highest medico‑legal men in Australia, say to me say to me it was like going in and a diabetic going in to get his toe amputated and losing his leg, what happened to me.  There were two junior doctors that testified at the County Court trial.  One of them was a student of Dr Marshall’s.  You just have to read the transcript.  They have just contradicted everything that they have said. 

All I am saying to you, if you do not believe what I say, look at what I signed for.  Look at the Medicare description of what I signed for.  A partial abdominoplasty is a minor procedure.  On the form that I signed I was told it was an overnight stay in hospital, one to two days.  On the procedure Mr Barnett performed on me - an abdominoplasty - people do not get out of hospital under seven days.  The only reason I left early was because the nursing care was so poor and my mother was a nurse, so she took care of me.  I could not even get out of bed. 

I mean, this has turned my life upside down, what has happened to me, and I have stood up against an insurance company that has unlimited funds and a doctor that has never turned up to court except for two days and lets an insurance company fight it for him.  I have Ms Hughes admitting in letters to me that he did not do an abdominoplasty on me.  So I have got at least 10 emails saying, well, why are we going to court?  You have just admitted what I have been saying for the last eight years.  Why is this going to court?  Your Honour, I just do not understand it.

Please just look at my item number, look at the Medicare description of my item number, look at – in his own handwriting, sub‑umbilical 30174.  I did not get 30174 on me and I did not get an overnight stay in hospital.  I am allergic to morphine and pethidine.  I woke up and thought I was going to die; I was in so much pain.  I have between 50 and 60 metal staples in my stomach.  I had a massive apron of tissue taken from my pubic bone to under my breast.  You do not do that on a 52 kilo woman.  You do that on someone who is grossly overweight.  Because he took out so much scar tissue when my body started to heal it was like a cobweb.  I had this massive cobweb of scar tissue inside me.  I had to undergo a second surgery to have that scar tissue taken out.

This case before the Court affects everyone in Australia.  There should be no greater trust than what there is between a patient and a doctor, and when I go into hospital and I say that I accept a minor procedure, which I did not even pay for to 5 December and the operation was on 7 December - Mr Barnett on 5 December, two days before the surgery, gave

me 30174.  There is only one entry in all of his nursing – on all of his clinical notes, one entry that indicates anything about major surgery.  That is “ASIC to ASIC”.  Now, I had no idea until the court case what “ASIC to ASIC” was.  It comes well after my signature that I signed to say that I had read the documents.  It is down the bottom of the page, well after my signature.

So there is no evidence whatsoever to show that Mr Barnett did not add that after the surgery.  Also too when I went back - I rang every day when I got out of hospital to speak to Mr Barnett and the day – there is a letter, I will find in a minute – where on the 14th when I went back to see him, there were two nurses in the room.  He would not even look me in the face when he spoke to me.  Apparently there is no record whatsoever of this heated discussion taking place, but he felt it necessary to write a letter that very day to five of my doctors telling them that I had an abdominoplasty because he needed to remove enough skin to give me a pleasing result.

I did not go to hospital to get skin removed.  I went to hospital to get a scar revision and muscle plication and the reason he had to remove four inches of my skin was because he took out too much subcutaneous fat to get to the muscles and it made the skin slack.  Then he had to do me a hip‑to‑hip scar to tighten the skin. 

Your Honour, I cannot say anything more except I have an excellent case.  I am just asking you to please look at what I signed for in my consent form and please do not take my home away from me, because if it is sold as a fire sale I will never ever ever get it back again.  I am only asking for a stay on this until my appeal is heard at the High Court.

HER HONOUR:   Yes, thank you, Ms O’Connell.

MS O’CONNELL:   Thank you.

HER HONOUR:   Just give me a moment, Mr Masel.  Yes, Mr Masel.

MR MASEL:   If it please your Honour.  Your Honour, we would like to come back in a moment to two issues that have been raised by the applicant and they are whether or not the applicant has demonstrated a substantial prospect that special leave would be granted, and the issues that have been raised concerning the extent of her financial interest in various properties.  But before we come back to those issues, can we emphasise the matters raised in our written outline of submissions.  Can we inquire does the Court have our written outline of submissions?

HER HONOUR:   Yes, I do, thank you

MR MASEL:   Without wishing to repeat at length what is set out there, in a case where the preservation of the subject matter of litigation is in issue, even then the jurisdiction of this Court to grant a stay is an extraordinary jurisdiction that is founded upon the demonstration of exceptional circumstances.  The principal point we make is that this is not a case of the preservation of the subject matter of litigation. 

If leave to appeal is granted and if the appeal is allowed, there can be a retrial of the proceeding in the County Court whether or not there has been an execution of the costs orders that have been made, and what is sought is to keep the respondent out of that which is presently the respondent’s entitlement, that is, to ‑ ‑ ‑

HER HONOUR:   Well, I presume if special leave were granted and if Ms O’Connell were successful in her appeal the insurance company, if they execute these costs orders, would be obliged to repay and undoubtedly would have the capacity to do so.

MR MASEL:   Indeed, and that is the point that we make at paragraph 5 of our written submissions, that in dealing with cases of whether the question of a stay is to do with the repayment of damages or costs, this is far from a case where it can be said that there is a risk that the respondent would be unable to repay the costs.  In fact, the very point made by the applicant is that the respondent is in effect an insurance company, and we refer to a particular paragraph of the applicant’s submissions which makes that point.  So we say that noting that the question is one of costs and the ability to repay costs does not assist the applicant at all.

On the question of a demonstration of a substantial prospect of special leave being granted, we say that it is important to bear in mind that the case before the Court of Appeal was nothing to do with a ground – there was no ground relating to consent or non‑consent to a medical procedure.  There was one and one only ground of appeal which had a number of subparagraphs and it is identified in paragraph 3 of the judgment of the Court of Appeal.  I do not know if your Honour has the judgment of the Court of Appeal at hand.

HER HONOUR:   Yes, I do.

MR MASEL:   But, at paragraph 3 their Honours, Justices of Appeal Ashley and Beach set out the single ground and the single ground was concerned with the obligations of a trial judge to ensure a fair trial where there is a litigant in person.  As to the question of whether or not there was consent to the procedure that was performed and whether or not the procedure that was performed was appropriate or not appropriate, those matters were determined by the trial judge in the County Court, his Honour Judge O’Neill, essentially on questions of credit, and his Honour made strong findings against the credit of the plaintiff, the present applicant, who he said to be “a disingenuous, unreliable and deceptive witness”.

HER HONOUR:   I have read that.

MR MASEL:   And strong findings in favour of the credit of the respondent and as to the expert evidence his Honour preferred the expert evidence adduced on behalf of the defendant, now the respondent, for reasons which are set out in his Honour’s reasons.  So we say that there is no question of strong prospects of special leave in relation to questions of consent to medical procedure.  The question is, is there a strong prospect of special leave being granted in relation to the obligations of a judge to a litigant in person.

We say that on that issue there is simply no real controversy in terms of what the law is or should be in that regard.  The obligations of a judge to a litigant in person are well understood and for the reasons which are set out in the judgments in the Court of Appeal they have not been breached in the present case.

So we say that the applicant has not established strong prospects - a substantial prospect that special leave to appeal will be granted and even if we were wrong in that, and strong substantial prospects had been established, this is still not an appropriate case for the grant of a stay because it does not involve the preservation of the subject matter of the litigation.  It does not involve exceptional circumstances and questions in relation to the equity, if any, in various properties are obviously matters which are going to have to be determined elsewhere.  They are not matters which are relevant, in our submission, to the grant of a stay, except for this.

If we can turn to the risk that the respondent faces if the stay is granted, the applicant’s case is that she has little or no equity in anything and that she will be unable to satisfy the costs orders that have been made or those which are yet to be taxed in the Court of Appeal because she says that the properties that she owns are heavily charged and that they are subject to equities in her former husband.

That may or may not be the case.  It is to be determined elsewhere.  But if it is the case, then Earl Street, which is, on the applicant’s case, subject to building works that are at hand or close to being at hand, her interest would diminish over time as her ex‑husband’s alleged interest increases and for that reason it is inappropriate, in our submission, that the respondent should be kept out of the benefit of the order that he has any longer than is absolutely necessary and certainly not a case for a stay. 

In relation to the transfer of the Queensland property, which is the subject of this morning’s affidavit, we say that this demonstrates a heightened risk to the respondent that if a stay is granted that the applicant will further dissipate her assets and we say this on the basis of what is apparent from the transcript in the Court of Appeal, which was exhibit 1A to the applicant’s most recent affidavit, and in that transcript at transcript page 26 ‑ ‑ ‑

MS O’CONNELL:   Excuse me, can I have a copy?   I do not – I have not received this.

MR MASEL:   This is your affidavit.

MS O’CONNELL:   My affidavit?

MR MASEL:   Yes.  I am sorry.

HER HONOUR:   Perhaps read it out for the assistance of Ms O’Connell.

MR MASEL:   Yes, I will.  It is the transcript before the Court of Appeal in which questions concerning the applicant’s financial circumstances were relevant.  It would appear relevant in the context of an application for leave to appeal out of time and that one of the issues that had been raised by the applicant was that her financial circumstances drove her to seeking leave to appeal out of time.  At transcript page 26, Justice of Appeal Ashley asked of counsel who appeared for her under the pro bono scheme:

She doesn’t have income.

MR DALTON:   Does not have income. 

Line 19:

She has assets.  She is the registered proprietor of a property in Queensland, which is referred to as Vantage Point . . . 

MR DALTON:   However, it’s fully encumbered.  It was purchased through borrowings made by her ex‑husband and he repays them in full.

Then there is reference to other properties.  Then there is reference to an application that had been made by the respondent for a freezing order, an application made in the County Court before his Honour Judge Anderson which application was unsuccessful, and at transcript page 30, line 27, counsel for the applicant says:

the defendant brought an application for a freezing order in November of 2013 following judgment and the preparation of a bill.  And the application, although it was refused -

Then on page 31:

And although it was refused, at Paragraphs 15 and 16 what his Honour –

That is his Honour Judge Anderson -

did was in effect give advice that it would be advisable if you were going to do anything with these properties to put the defendants on notice if either raising money or selling would be likely to dilute their ability to recover.

So, his Honour Judge Anderson, while refusing a freezing order, gave advice to the applicant that if she was proposing to do anything with these properties she should put the defendant on notice.  Now, these properties were Earl Street and Lincoln Place, because Burleigh Heads had not been disclosed at that point in time, but nonetheless, the point remains, a judge had refused a freezing order because there was insufficient evidence of a threat to dissipate, but had given advice in a judgment to the applicant that she should put the defendants on notice in the event that there was to be any dissipation.  The point of Ms Hughes’ affidavit, sworn and filed this morning, is that we had no notice at all of the transfer of Burleigh Heads in Queensland.  So we say that is further evidence of a risk that will be faced in the event that a stay is granted. 

The principal points, however, remain that this is not an appropriate case because there are no exceptional circumstances and that it does not involve the preservation of the subject matter of appeal.  Unless there are particular issues, they are the submissions, your Honour.

HER HONOUR:   Yes, thank you.  Yes, Ms O’Connell, would you like to respond to Mr Masel?

MS O’CONNELL:   Yes.  Your Honour, I find it quite extraordinary that Ms Hughes would like to bring this up again about Vantage Point.  As I said, your Honour, it was fully canvassed in lengthy affidavits.  We submitted all the bank account statements.  We submitted absolutely everything.  Vantage Point Drive was never my property.  There were emails from two years ago to show that Michael had plans to always have it in his name. 

The only reason that it was in my name is because he was conducting a company.  The only reason it had not been transferred over two years ago – it is a commercial property, really.  It has got massive big garages where Michael stores all his electrical equipment and all of the equipment that he uses for his business and it was set up so that his company would basically be renting the property. 

But, Ms Hughes was shown the affidavits from two years ago and, as I say, the only reason it was not transferred is because the company that he was working for went broke.  He no longer has a company in his name.  He is a salary earner now and he is working for the mines in Perth.

I gave an undertaking – Vantage Point Drive was never discovered by Ms Hughes.  Ms Hughes went on this wild goose chase of making out like I was some big real estate mogul that owned property all over the world, that I had an affluent lifestyle.  I had a fully‑staffed villa in Bali.  I had businesses – clothing businesses that earned me millions of dollars every year.  I mean it was just farcical the scenario she presented to the court. 

Vantage Point – I did not offer any information.  Ms Hughes was the one that took me to court on Vantage Point – sorry on Earl Street and Lincoln Place.  They were the two properties.  I gave an undertaking to the court that I would not dispose of them.  I told the court that they were not mine to dispose of freely.  We showed the court the bank statements. 

It is fine to say, “Oh, gee, if we have made a mistake, we will give you the money back”.  It cannot work that way.  I will never get that property back again.  It has been my home for 18 years.  As far as me being described at the County Court as unreliable and all the adjectives that I have been called – this is a list that was drawn up by Gerard Dalton, the barrister of 15 years that represented me. 

There is one point for Mr Barnett – an entry in his clinical notes.  I have pages and pages and pages.  The County Court – if you talk about consent – I wanted to write 51 pages for my consent and I was told by the County Court – sorry, I was told by Gerard Dalton, a barrister of 15 years, that I had been given such an appalling, unfair trial that it was not necessary for me to address all of the consent issues at the Supreme Court.  He said it was enough to prove that I had been given an unfair trial and he said it would be an absolute impossibility for the other side to put forward a case to say that I would not have actually won the case if I had had a fair trial and a fair judge.  Excuse me, can I just read this, your Honour, for a minute?

HER HONOUR:   Yes.

MS O’CONNELL:   So, as I say, I wrote 51 pages regarding what the credit points were.  I can read you 10 pages of Mr Barnett’s credit notes to reject him but none of that was even – it did not even come into ‑ ‑ ‑

HER HONOUR:   Ms O’Connell, I should, I think, ask you to pause just to recognise that the special leave application is concerned with whether or not there was error in the Court of Appeal’s judgment.  In the Court of Appeal the ground of appeal was that the trial had been unfair.

MS O’CONNELL:   Yes.  It was not just that the trial had been unfair.  There was also a letter to the Medical Conduct Board.  There was also the fact that this was refused into evidence.  It was a very, very important letter.

HER HONOUR:   The Court of Appeal dealt with that point in their reasons on the basis that the Court of Appeal considered that that letter had the potential for doing your case more harm than good.

MS O’CONNELL:   Not at all, not at all.  That was why I wanted to submit it.  It had no – that Court of Appeal letter could have done me no harm.  The Court of Appeal letter – sorry, the letter was very important because he lied to the Medical Conduct Board.  He told them I went there because I had had liposuction to my stomach and excess skin.  I have never had liposuction to my stomach in my life and I did not have excess skin.  That is not the reason I went to see him. 

He also said in that letter to the Medical Conduct Board “The scar did not have to rise up like it did.  It rose up like it did because of the nature of your jeans and your undies.  If you had worn jeans that were lower, I could have made the scar lower.”  I mean, how is that possible?  It is a doctor’s duty to cut me the least way possible.  I just want to say something – there is something here. 

HER HONOUR:   Yes.

MS O’CONNELL:   He did not take my blood group at all.

HER HONOUR:   Yes.

MS O’CONNELL:   I could have died.  He took no blood groups from me.  Regardless of the grounds of appeal, the High Court should have an overarching role to ensure that justice is done and if the High Court thinks that there is an injustice or an unfair trial, it should be seen as interfering and ensure that justice is done for the good of all Australia. 

Honestly, this - Judge Ashley – he had already decided my case when we went there.  He had already decided it.  Gerard Dalton started to talk about the letter to the Medical Conduct Board and he said, “Well, this is wrong.  Ms O’Connell did not have liposuction”.  “Well, if that is the best you have got, move on”, he said.  Then, Justice Beach – he had not even read the transcript.  He said, “Well, did not something have to be removed?”  That is the whole point.  Nothing had to be removed.  Nothing had to be removed but if you want to talk about having an unfair trial, Mr Barnett was not there.  He did not turn up until two days at the end of the trial.

We had Mr Murdoch, who I notice is not here today, translating his clinical notes on the run.  I have got the judge saying, “Well, Mr Barnett is going to say this and Mr Barnett is going to say that and Mr Murdoch is going, oh, and I think he is going to say this and I think he is going to say that and how come it is in his notes that he has got hip to hip if you did not say that?”  I said, well, because I did not say that and I can prove I did not say it.  Look at my consent form.  A partial abdominoplasty on the brochure given to me – 30174 – is a tiny scar.  I admitted I was going to get an extension of my scar but no way known – no way on God’s earth did I ever, ever consent to a hip‑to‑hip scar.  There is no way known.  I put it off for a year.  I am allergic to morphine and pethidine.  I nearly died the pain was so bad.

So as far as unfair trial – an unfair trial goes to the fact that you look at the evidence.  There is not one legal person that has looked at my evidence since this County Court trial and has not shook their head in disbelief at what has gone down.  Do not believe what I say.  Do not believe what Mr Barnett says.  Look at what I signed for - 30174. 

I have not done anything untoward as far as disposing of properties.  I gave my word to the court that I would not dispose of Lincoln 1 and I gave my word to the court that I would not dispose of Earl Street.  Michael has written lengthy affidavits.  As I said, he has given all his bank statements.  Ms Hughes has only done that to try and discredit me and prove that I am this unreliable person that cannot be trusted.  Ms Hughes is the one that cannot be trusted here because she has brought – as a solicitor – she has brought this case to court knowing full well that she did not have a case against me. 

She has admitted in a letter he did an abdominoplasty on me.  This case should not see the inside of a courtroom.  But Ms Hughes has made a name for herself.  She has got a promotion out of it.  She has obviously got a bonus I hear from winning this case against me.  She has used the resources of her ‑ ‑ ‑

HER HONOUR:   Ms O’Connell, you need to concentrate just on replying to Mr Masel in relation to this stay application.

MS O’CONNELL:   Okay, okay.  There is something to be preserved in this, your Honour - my house and the land.  I gave my word I would not dispose of them and I give my word to you now.  I never had any intention of disposing of them and Vantage Point was never my property, ever, and Ms Hughes knows that and that was never, ever, ever in the scheme of things.

HER HONOUR:   Yes.

MS O’CONNELL:   Your Honour, I am just saying this is a grave injustice that has been done to me.  I just want the chance to run my case before the High Court and I give my word the properties will not be disposed of.  If this warrant to issue them is sold, I can never, ever get them back again.  It is not something I bought yesterday or last week or last month.  My home has been my home since 1996.  Earl Street we have had, I think, maybe eight or nine years and as I say there is already a building contract there to build a house. 

My only equity in that is a percentage of the land.  I do not care about that and I have said to Michael that I am prepared to forgo some of my equity in that because he has loaned me close to $100,000 in the last 12 months to pay my bills – to pay legal bills and to keep me going.  If I did not have him, I would be on the street.  So I am very lucky that I have got him and he does have a very strong equity and his bank accounts prove it.  I cannot say much more.

HER HONOUR:   Thank you, Ms O’Connell.

MS O’CONNELL:   In order to refute my credibility, I have written, I think, a 52‑page affidavit refuting every single one of those credibility issues.

HER HONOUR:   I have read the material and I have, of course, read the grounds in the notice of appeal.

MS O’CONNELL:   Yes.

HER HONOUR:   I think there were 100, or so. 

MS O’CONNELL:   That is right.  Have you read the summary of argument in that as well?

HER HONOUR:   Yes, yes.

MS O’CONNELL:   There is not one single ground that they have brought against me that they can prove.  Every single one of them and it was never the judge’s words.  It was a big thesis that was handed up by Mr Murdoch at the end of the trial.  I do not know.  Your Honour, I do not know much more.  I think I have written just about everything in it – even the judge himself said it was clearly a case of failure to warn.

HER HONOUR:   Yes.

MS O’CONNELL:   Then he just did a complete flip.  Okay.

HER HONOUR:   Thank you, Ms O’Connell.

By an application filed on 15 August 2014 the applicant, Ms O’Connell, seeks special leave to appeal from a judgment of the Court of Appeal of the Supreme Court of Victoria – O’Connell v Barnett [2014] VSCA 125. The applicant has also filed a summons dated 27 August 2014, returnable today, seeking a stay of the execution of costs orders against her in the County Court of Victoria and other costs orders until her special leave application and any appeal to this Court is heard and determined. The costs ordered in the County Court have been taxed and a warrant of seizure and sale has issued. The costs for the subsequent hearing in the Court of Appeal have not yet been taxed. The application for stay is opposed by the respondent.

The applicant has, over a period of time, undergone a number of operations involving her supra‑pubic area.  The last of these operations prior to the applicant consulting the respondent, Dr Geoffrey Barnett, Plastic Reconstructive and Cosmetic Surgeon, was a hysterectomy and surgical treatment for a prolapsed bladder.  The applicant first attended upon the respondent on 30 November 2005.  She consulted him again on 3 March 2006, 18 October 2006 and 5 December 2006. 

On 7 December 2006, the applicant underwent surgery with the results of which she was very dissatisfied.  The applicant subsequently sued the respondent in contract and tort in the County Court of Victoria.  Amongst other things, the applicant alleged there was an agreement between the parties that the respondent would undertake a limited lower abdominoplasty with a resultant small supra‑pubic scar and that the respondent had breached this agreement.  The applicant also alleged that the respondent was negligent in undertaking an inappropriate procedure leaving her with a scar going from one hip to the other hip and that the respondent failed to warn her as to the risks of the surgery performed by him.

The applicant’s claim for damages for personal injury failed and on 15 October 2013 the County Court (Judge O’Neill) gave judgment for the respondent with costs.  On 7 April 2014, the applicant, by summons, sought leave of the Court of Appeal to extend the time within which to appeal against the orders made by the County Court and if leave were granted, to appeal against those orders.  The single ground of appeal pursued in the Court of Appeal was that the trial judge failed to discharge his duty to ensure a fair trial.  Various particulars were given.

On 20 June 2014, the Court of Appeal granted leave to extend time and dismissed the appeal.  All members of the Court of Appeal were satisfied that the trial judge ensured that the applicant had a fair trial and gave the applicant every opportunity to explain her case and to give her evidence in support of that case.  The principal thrust of the application for special leave is that the Court of Appeal erred in rejecting the applicant’s contention that the trial, in which she was unrepresented, was procedurally unfair.

The principles to be applied in determining whether a stay should be granted, pending the hearing and determination of an application for special leave to appeal, are well established.  I refer in particular to the reasons given by Brennan J in Jennings Construction Limited v Burgundy Royale Investments Pty Limited (No 1) (1986) 161 CLR 681. His Honour referred to the undoubted jurisdiction of this Court to grant a stay pending the hearing of an application for special leave to appeal and said at 684:

A stay to preserve the subject‑matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted. 

There is no subject matter of litigation here to be preserved as the stay sought is a stay of the execution of costs orders.  A refusal of the stay sought would not give rise to any later difficulty for this Court in granting the relief sought:  cf Manfal Pty Limited v Trade Practices Commission (1990) 65 ALJR 256 at 257. His Honour, Brennan J went on to identify four factors material to the exercise of the discretion to stay at 685:

In each case when the Court is satisfied a stay is required to preserve the subject‑matter of the litigation, it is relevant to consider:  first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.

It was contended before me today on behalf of the applicant, who again represented herself, that she never consented to having a full “tummy tuck” done by the respondent and she repeated allegations that the respondent’s medical records have been falsified.  The applicant also repeated her complaints alleging unfairness at her personal injury trial which was, as explained above, the single ground of appeal before the Court of Appeal. 

The applicant has canvassed the merits of her application for special leave as a basis for justifying a stay of execution of costs orders which may result in selling properties in which she has some financial interest, including a family home since 1996 at 1 Lincoln Place, Windsor.  The respondent submitted that there is no substantial prospect that special leave to appeal would be granted and that a stay of execution of the costs order should not be granted as there is no evidence and no suggestion that the respondent would be unable to repay the applicant if her special leave application and any appeal were successful.

It can be accepted that the applicant has taken the necessary steps to seek a stay from the Court of Appeal.  Thus, she satisfies the second matter identified by Brennan J.  The respondent in oral and written submissions drew attention to the potential for a grant of stay to cause loss to the respondent on the basis that the applicant’s former husband may be able to develop his equitable interest in a property identified in the warrant of seizure and sale to the prejudice of the respondent.  This was in response to the applicant’s submission that her husband has the “lion’s share” of equitable interests in the properties in which she may also have a financial interest.

The respondent also relied on the circumstance that a property at 14 Vantage Point, Burleigh Heads was recently transferred from the applicant to her former husband.  The applicant explained she had no equitable interest in that property.  It was submitted, however, for the respondent that if a stay were ordered there is a risk that the applicant may dispose of assets, presently held in her name, or in which she holds some financial interest. 

In relation to the balance of convenience, the relevant costs orders have arisen following the decision in the County Court which has been undisturbed on appeal.  A stay will deprive the respondent of the benefit of orders in his favour.  On the other hand, the applicant has asked that the Court note that she has made objections and seeks a review of the relevant costs orders in the County Court which will be heard on 24 October next.  Should her review be successful she may be entitled to a reduction in the amount owing under the costs orders.  Assuming that the applicant’s review was in fact successful she would have grounds to seek a refund of the relevant amount from the respondent.  The taxation in respect of costs in the Court of Appeal will be dealt with on 23 September next. 

Weighing up those factors, in my view the balance of convenience between the parties lies with the respondent.  These factors alone are not determinative.  Rather, the main focus of the inquiry must be upon the first of Brennan J’s considerations and that is whether the applicant enjoys substantial prospects of success in obtaining special leave to appeal.

Today is not the occasion for determining the substantive merits of this matter.  However, having reviewed the decisions below and having carefully considered the judgment in the Court of Appeal I am not immediately persuaded that the Court of Appeal erred in upholding the decision of the County Court.  In those circumstances I am not persuaded that the applicant’s prospects of success in obtaining special leave to appeal in this Court are sufficient to outweigh the considerations of loss and balance of convenience described. 

Even without regard to the factors of loss and balance of convenience which were identified by Brennan J, this does not appear to me to be a case in which the extraordinary jurisdiction of this Court to grant a stay, pending the hearing and determination of an application for special leave to appeal, should be exercised.  For those reasons, the application for stay must be dismissed.

As the applicant is unrepresented, the application for special leave will fall to be determined under rule 41.10 of the High Court Rules 2004 (Cth). The appropriate course appears to be to order that the costs of the application for stay be the respondent’s costs in the application for special leave to appeal. This would have the consequence that if special leave to appeal were refused, the costs of the application for stay would be payable by the applicant to the respondent. Likewise, should the application for special leave to appeal be granted, the costs of the application for stay would lie where they fall.

Does either party wish to be heard on the proposal concerning costs?

MR MASEL:   No, your Honour.

HER HONOUR:   Ms O’Connell.

MS O’CONNELL:   Sorry, your Honour, can you just – there were just a couple of mistakes.  You made two – it was 1996, not 1986 – my home.

HER HONOUR:   1996, I am sorry.  I will have that correction made, Ms O’Connell.

MS O’CONNELL:   That is fine, and it was 3 May.  Sorry, your Honour, are you saying that – I sort of was trying to take it all in.

HER HONOUR:   The stay application has been refused.  When the special leave application is heard, if you fail to get special leave the costs of today will need to be paid by you to the respondent, but if you succeed on the special leave there is the possibility of a costs order further down the track.

MS O’CONNELL:   So are you saying that they can go ahead and sell my house before ‑ ‑ ‑

HER HONOUR:   The stay has been refused.

MS O’CONNELL:   So they can go ahead and collect a cost before my appeal is heard?

HER HONOUR:   That is right.  They could.  The stay has been refused.  I am only asking you to address me on the costs issue, but I want to go on to mention that it should be noted by the parties that I have made inquiries this morning and as a result of those inquiries I am able to indicate that the application for special leave is likely to be dealt with in the October sittings of this Court.

MS O’CONNELL:   Your Honour, if my home is sold I can never get it back again.

HER HONOUR:   I have heard your submissions, Ms O’Connell, and I have made my ruling.  The invitation to be heard further has only been in relation to the costs order which I have sought to explain to you.  What I propose to do is make orders in the terms indicated and ask you and Mr Masel to note that your application for special leave is likely to be dealt with in the Court sittings next month.

MS O’CONNELL:   So can I ask for a delay of the costs order until after the appeal is heard?

HER HONOUR:   Any further applications you want to make at any time you can make, but the present position is that the application for stay, which you sought to obtain today, has been dismissed.  The stay application has been refused.  But your application for special leave is likely to be heard in the October sittings.

MS O’CONNELL:   Okay, thank you.

HER HONOUR:   That means that the position is likely to be a lot clearer in relation to your application for special leave in a month’s time.

MS O’CONNELL:   Okay, thank you.

HER HONOUR:   Thank you.  Adjourn the Court.

AT 10.35 AM THE MATTER WAS CONCLUDED