Patrick v Howorth

[2004] HCATrans 81

[2004] HCATrans 081

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S71 of 2003

B e t w e e n -

ALBERT PATRICK

Applicant

and

VICTORIA HOWORTH

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 16 MARCH 2004, AT 2.54 PM

Copyright in the High Court of Australia

MR A. PATRICK appeared in person.

GUMMOW J:   The Court holds a certificate from the Deputy Registrar that she has been informed by the solicitor for the respondent that she will be submitting to any order the Court sees fit to make.  Yes, Mr Patrick.

MR PATRICK:   I trust that you have received my submissions and you have had a look at it.

GUMMOW J:   Yes, we have.

MR PATRICK:   Okay.  Let me tell you first how the respondents frame their case in the District Court.

GUMMOW J:   Well, that is not the issue.  We have to be satisfied that there is some error in the Court of Appeal, in particular, in the leading judgment delivered there which was delivered by Justice Hodgson.

MR PATRICK:   Yes, I just want to go through the series of events ‑ ‑ ‑

GUMMOW J:   Well, you have got limited time, you understand?

MR PATRICK:   It is only two pages, so it is about 10 minutes ‑ ‑ ‑

GUMMOW J:   Yes.

KIRBY J:   If you are going to read this, would it be more efficient if we took time to read it, because you can read six times faster than you can listen?  Is that all right, if we take a moment to read it?

MR PATRICK:   No, I would like to read it, because I would like to take you through it and if you want to stop me as I go through, if you want to ask any questions, I would be happy with that.

KIRBY J:   Yes, all right.  Proceed.

MR PATRICK:   So let me tell you first how the respondents framed their case in the District Court.  The respondents allowed all my witnesses to testify.  They then brought in their own witnesses and they also testified.
Now, five weeks into this long, long trial, on the 23^rd day of the hearing, the last witness came to testify.  That witness was Dr Bleasel.  Once cross‑examination commenced, the respondents requested Dr Bleasel to produce his file.  The respondents then opened the file and immediately, skipping 10 to 50 pages at a time on a file this thick – your Honour, it was more than 2 inches thick – they went straight to the three references in the chronology that were marked “not tendered”.  Those reports were the reports of Dr Mitterdorfer, Pamela Johnson and Dr O’Sullivan. 

The respondents then complained that that was information that Dr Bleasel had and that neither the respondents nor the court had.  So they requested the reports.  My solicitors produced them and the respondents examined Dr Bleasel on the contents.  The respondents then tried to tender the reports into evidence, but my solicitors objected based on privilege, but it was too late.  Dr Bleasel had already been examined on the contents so Judge Herron entered the reports into evidence. 

In the end my case was destroyed.  To use the respondents own words, my case was left “in ruins”.  My solicitors and I were discredited for the manner and the content of these reports and the way they appear.  I lost all credibility and, worse, all my medical evidence became totally irrelevant to the case because not one of the medical experts that testified on my behalf in the previous five weeks had considered any of the three reports.  The respondents said at T1513 that the reports were fatal to my case. 

Now, the respondents then closed their case making a series of derogatory submissions that went on and on for three days.  At T1708 Mr Charteris told the judge that the reports were hidden.  Also at T1708 he said:

Your Honour might take the view that if the defendant had been aware of [the existence of the report], we would have [called the author], plus it would have been put to all the doctors –

who previously testified, as if Mr Charteris’ case not only had been tremendously disadvantaged by not knowing of the existence of the report before the trial, but Mr Charteris lamented to the judge not having had the opportunity to request and produce the reports before Dr Bleasel testified.  Mr Charteris lamented not having had the opportunity to call Dr O’Sullivan, Dr Mitterdorfer and Pamela Johnson, and not having had the opportunity to cross-examine my doctors about the three reports when they testified in the previous 23 days.  And Judge Herron found in his judgment exactly what Mr Charteris told him.  On page 55 of his judgment Judge Herron found, at paragraph 10:

The plaintiff was examined however by Dr Dudley O’Sullivan . . . As Mr Charteris pointed out the doctor’s report was only discovered after Dr Bleasel revealed in evidence that it had been sent to him –

So that is how the respondents framed their case in the court.  They did not know about these reports.  They came out at the last minute, when the last witness came to testify.  So Mr Charteris framed the case as if he had no idea that the reports existed.  He framed the case around his good fortune, a chance discovery, and a very lucky find.  At T1708 Judge Herron said just that, that the reports of Dr O’Sullivan, Pamela Johnson and Dr Mitterdorfer were discovered in Dr Bleasel’s file in a “lucky” – or “fortuitous find” are the actual words the judge used.  But it was fraud.  There was no lucky find.  Nobody is that lucky.  No barrister asks for one file out of 50 and gets lucky because of no reason whatsoever.  It immediately reveals privileged information that he did not know about. 

My case on appeal on ground 2 was just that, that nobody in court, as evidenced in the transcript, could keep up with the intimate knowledge Mr Charteris had of the contents of Dr Bleasel’s file, the chronology and the summary of the reports that were contained in it.

KIRBY J:   Well, it looks as if the majority – or it looks like certainly Justice Meagher was very much affected, and so were the other justices of the Court of Appeal, by the way you appear to have overpitched your case, saying that you had to be in a wheelchair for ever and you needed your wife’s help, even putting toothpaste on the brush.

MR PATRICK:   That is not the issue, your Honour.  That was the defendant’s case.  That is the case that the defendant’s made for me.  Those reports were produced by the defendants ‑ ‑ ‑

KIRBY J:   The videos show that that was not ‑ ‑ ‑

MR PATRICK:   But hang on a sec.  But that is not the issue because this Court cannot deal with the factual issues of the case.

KIRBY J:   That is true.

MR PATRICK:   I cannot tell you I was sick.  I cannot tell you they were wrong in not taking my word.  I have to continue with this point.  This is – so Justice – hang on a second.  My case on ground 2 on the appeal to the Court of Appeal was that nobody in court, as evidenced in the transcript, could keep up with the intimate knowledge that Mr Charteris had of the recent file.  I have to remind you that what Mr Charteris said at T1708, that:

Your Honour might take the view that if the defendant had been aware of [the existence of the report], we would have [called the author], plus –

we would have asked all doctors questions in cross‑examination.  When I said that that was a lie that he knew about the existence of the reports and the file, Justice Hodgson and Justice Giles agreed.  Justice Hodgson found at 68 in my favour that it was obvious that Mr Charteris was produced Dr Bleasel’s file before the trial and agreed with my submissions showed that Mr Charteris knew its contents very well before Dr Bleasel took the stand.  Now, unfortunately – and this is the reason why the Court has to intervene – Justice Hodgson applied the test of whether the access had been proper or improper to allow the appeal, and did not give me the chance to tell him that the test he applied was the wrong test, because he raised the issue in his judgment. 

My case here, today, is that the test that Justice Hodgson applied was wrong.  It did not matter if the access was proper or improper.  The right test, the only test was whether there was prior access to Dr Bleasel’s file, yes or no.  And the finding of, yes, that there was prior access, as Justice Hodgson found, is sufficient to allow the appeal, because when the respondents opened Dr Bleasel’s file, well before the hearing, and learnt about the existence of three privileged expert medical reports, it does not matter whether the access was proper or improper.  They should have made an application for pre‑trial discovery of those three reports.  They should have asked my solicitors to decide privilege before the trial, and not at the trial.

KIRBY J:   I know this is very important to you, Mr Patrick, this point, but it is only one point in a very large trial and appeal and you make it ‑ ‑ ‑

MR PATRICK:   Okay, hang on a second.  What if the doctors needed to comment on the report?  What if the authors needed to be called?

KIRBY J:   The bottom line is the trial judge thought you grossly exaggerated and did not believe you.

MR PATRICK:   But hang on a second, if – just give me a chance to finish this and then I will tell you why this appeal should ‑ ‑ ‑

KIRBY J:   You are running out of time.

GUMMOW J:   You are running out of time, Mr Patrick.

KIRBY J:   It is important you answer my questions, rather than make a statement.

MR PATRICK:   I will in a second.  Let me finish my case  I have not ‑ ‑ ‑

KIRBY J:   Unless we are here for a ceremony, we are here to exchange ideas and…..your mind with my mind.

MR PATRICK:   Okay.  What you are doing is, you have the law on one side and the law says – there are laws in the District Court which are in place to avoid the trial by ambush, and the frame of mind of a judge can be greatly affected if ambush is used and documents are discovered at the last minute.  Now, you have a barrister who has – you have two findings in the judgment.  Judge Herron at 55 is telling you that the documents came up in a lucky find, a last minute discovery, and the Court of Appeal says, no, Mr Charteris has lied to the judge because he knew about the report well before the judge. 

Now, Mr Charteris spent three days in court ruining my case and my reputation and lying.  I mean, this is what I want to say.  If a witness is found to lie in a case, his case will be thrown out, or his evidence is totally irrelevant to any case.  If a barrister is found to lie – and he spent 29 days on his feet saying that I was going out with prostitutes, that I was a gambler, that I was a no good person.  I mean, why do findings on credibility have to stand?  That is my question to you.  I mean, barristers should not mislead the court, and if one barrister misleads the court on this one point, he pretends not to be aware of the existence of this report ‑ ‑ ‑

KIRBY J:   But you had 12 grounds, including the added ground of inadequate legal representation ‑ ‑ ‑

MR PATRICK:   Yes.

KIRBY J:   ‑ ‑ ‑ and the matter you are spending all this time addressing is just one issue in the trial.  I know you say that that caused the judge – you lost the judge, you say, at that point. 

MR PATRICK:   But this Court cannot deal with questions of fact.

KIRBY J:   That is true.

MR PATRICK:   I cannot take you over the medical findings and show you what is wrong.  I would, if you gave me the opportunity.  I mean, if you want to stay another half an hour, I will show you one, only one.

GUMMOW J:   No, no.

MR PATRICK:   Okay.

GUMMOW J:   The ordinary rule is 20 minutes for you, like everybody else.

MR PATRICK:   Exactly, your Honour.  But what I am saying is barristers are not supposed to mislead the court.  They are not supposed to know about reports, keep the information secret and wait until the last witness testified.  I mean, they were waiting all the time, knowing that those reports existed, and those reports – there is reliance.  I mean, Judge Herron based his judgment particularly on those three reports.  There is pages and pages where the reports, exhibits 21 and 22, the report of Dr Mitterdorfer, the report of Dr O’Sullivan ‑ ‑ ‑

GUMMOW J:   Where does Justice Hodgson deal with this particular point, because it is his judgment that matters to us?  We do not retrial Judge Herron – we look at what the Court of Appeal did.  What did Justice Hodgson say on this point that you have been taking the time to deal with?

MR PATRICK:   He agreed with my submission, that Mr Charteris was – if you look at page 68 – sorry, it is item 68 of his judgment, which I think is page 90 or 85. 

GUMMOW J:   Yes.

MR PATRICK:   There are two things he said.  Application book 89A is the first reference.  So there are two references.  Page 89A is at point 67.

GUMMOW J:   Yes, we have it.

MR PATRICK:   Okay:

Second, the appellant submitted that Mr Charteris must have had improper access to a confidential file of Dr Bleasel –

I mean, if you look at the evidence, it is that that file was stolen by another doctor.  That is why it could not be revealed, but that is not the issue, because if the access had been proper, my doctors and my solicitors were ambushed.  This is the other point I also want to raise.  My solicitors objected to the tender of the reports in the end.  After they were ambushed, and they reacted, when they came back to court, and the reports wanted to be tendered, my solicitors objected and they raised the issue based on privilege. 

Now, what I am trying to say is, if my solicitor had been requested the reports well before the trial, the chances are that there is no way that those reports would have been released, because, yes, they were damaging, yes, a couple of them could have been updated and, you know, the whole thing could have been blown out, but it would not have led to a finding of fraud.  Now, so you have read page 89A.  The one that you have not read is page 90, which is ground 8.  This is the acceptance of the second report of Pamela Johnson and it reads:

A report by Pamela Johnson of Vocational Capacity Centre had been obtained by the appellant’s previous solicitors, but was admitted into evidence by the primary judge over objection of the appellant’s Counsel.  The reason given by the primary judge was that a summary of the document had been sent to Dr Bleasel, who had given evidence for the appellant.  The appellant submitted that this report was protected by client legal privilege, and should have been rejected.  What had been sent to Dr Bleasel was not a true summary of the report, but only a reference to it in a chronology. 

In my opinion, the provision –

blah, blah, blah, blah.  If you go at the bottom of the last paragraph:

No evidence was led before us that this occurred by reason of mistake or oversight. 

KIRBY J:   Well, he says that your counsel waived the objection.  It was called for and produced ‑ ‑ ‑

MR PATRICK:   No.  It was admitted – there it is, on the first paragraph, it says what happened:

A report by Pamela Johnson of Vocational Capacity Centre had been obtained by the appellant’s previous solicitors, but was admitted into evidence by the primary judge over objection of the appellant’s Counsel.

So it was admitted – I mean, it was admitted over objection.  The objection was never removed.  Now, there are rules in the District Court that deal with the exchange and provision to the court of medical reports if you wish to rely on them.  The only way the defendants could circumvent those rules was to pretend and to obtain those reports at the last minute – was to pretend that they did not know about them, call for them, in an ambush, during Dr Bleasel’s testimony and then examine Dr Bleasel straightaway before my solicitor had time to react, so the judge would have to admit it into evidence.  That was a stab; that was a pre-planned stab.  They knew exactly what they were doing, as they knew what they were doing with the rest of the trial. 

So, if you imagine, if Justice Hodgson had found out that he was deceived and that the respondents knew that those reports – knew about those reports and Judge Herron knew about those reports before – that the defendants had access to those reports before the judge or summaries of those reports, there is no way he would have accepted those reports into evidence, and those reports of the court of the finding of fraud. 

To answer – and I will answer your question about my appearance in court on a wheelchair.  I had vestibulitis, which is – I had pus coming out of my ear, and your ear is your centre of balance and I did not know where it was coming from and I was taking morphine, and I am still taking morphine.  So I had no idea that I had this infection in my ear, and that was the only reason why I could not move for – it was only a few months before the trial.  But, your Honour, there were 50 reports and lots of them are covered by Judge Herron in his judgment, and what it says is that I walk – I mean,…..with a normal gait.  That is the report of Dr Kwok and it is in – so it is not that I have been to 50 doctors on a wheelchair, pretending that I could not walk.  I went, I walked and I stood up and down, and I did all the tests that they requested me to do, but I did not know that I had vestibulitis the day I went to the hearing.  I had no idea and no way of knowing. 

The only reason I found out is, the day of the trial, the respondents produced an MRI that said that I had vestibulitis, and I took that to my doctor and I showed it to my doctor.  Now, I am not telling you, “This is what I had, believe me”.  I am telling you there is an X‑ray, obtained by their own respondents.  That was the one that alerted me to the problem, and I took that to my doctor.  There is not one medical report where I said that I am incapacitated in a wheelchair.  The only thing – the only person that said that I was incapacitated on a wheelchair and I am a fraud because I was doing that, is because that is the way I appeared in court, but you are not going to find ‑ ‑ ‑

KIRBY J:   I thought you were cross-examined about that and you said that that was the case.

MR PATRICK:   But that – no, your Honour.  There are two cross‑examinations.  One of them is, what do I do on an everyday basis?  The second examination is, what can I do in court?  Why could I not get out of that wheelchair?  And that is the one ‑ ‑ ‑

KIRBY J:   It is set out on page 86.

MR PATRICK:   I know, but that is the one where I was ‑ ‑ ‑

KIRBY J:   You could not move at all.

MR PATRICK:   Not in court, because my wife was ‑ ‑ ‑

KIRBY J:   Yes:

you say you can’t get out of that wheelchair with a cane?
A.       Well, my goodness, you’re a lawyer, why don’t you get a doctor to talk about these things?

Q.       Why don’t you just answer the question ‑ ‑ ‑

MR PATRICK:   Can I read the other one?

KIRBY J:   Yes.  Page 86 of the application book.

MR PATRICK:   I know.

KIRBY J:   You answered, ultimately, “I cannot”.  “I cannot” get out of the – a lot depends on these cases, Mr Patrick.  I have done many of these cases over the years, more than I want to remember ‑ ‑ ‑

MR PATRICK:   I understand, your Honour.

KIRBY J:   ‑ ‑ ‑ and a lot depends on the impression that the plaintiff makes.

MR PATRICK:   That is exactly right.  And if you destroy the evidence – look, it does not give a barrister the right to lie, to commit fraud in court, to prove fraud.  You do not fight fraud with fraud.

KIRBY J:   Well, he has a video which shows that you can do much more than you were saying ‑ ‑ ‑

MR PATRICK:   But so do ‑ ‑ ‑

KIRBY J:   ‑ ‑ ‑ and his duty then is to put that to you.  It is his duty.  He has got to put it to you.

MR PATRICK:   But hang on a second.  I mean, again, we are going to the facts of the case, you know.  I mean, what you are telling me – I understand what you are telling me.

KIRBY J:   Well, they are necessary to answer the points that you raise.

MR PATRICK:   Look, you are telling me, you went to court and you lied and you presented an image that that was wrong, or was exaggerated, or ‑ ‑ ‑

KIRBY J:   That is what he suggested.  That is what the trial judge found.

MR PATRICK:   Yes, that is exactly right ‑ ‑ ‑

KIRBY J:   And the video was said to convince the Court of Appeal. 

MR PATRICK:   Then why the AMP, with all that evidence, pay me under my permanent disability policy and why did the same judge pay me $900,000 against the first defendant in the other case?

KIRBY J:   Maybe he did not have the video.

MR PATRICK:   The video did not ‑ ‑ ‑

KIRBY J:   That was settled, was it not, the first case?

MR PATRICK:   That was settled, yes, but he entered the judgment.

GUMMOW J:   Now, the red light is on, Mr Patrick.

MR PATRICK:   Can I – okay.

GUMMOW J:   So finish up, if you would.

MR PATRICK:   Okay.  You are leaving the law on the side, on this case.  What you are saying is, look, mate, you were caught ‑ ‑ ‑

GUMMOW J:   No, we do not leave the law on the side, Mr Patrick.

MR PATRICK:   Yes, okay. 

GUMMOW J:   That is what we have sworn to uphold.

MR PATRICK:   This is my impression – this is the impression I get from what I am saying, is, “Look, I look at the overall picture.  You went and presented one picture to the court, and you exaggerated, and the court found against you and they threw your case out”.  So that is exactly what happened, and that is what you are telling me, and I understand it because this is the same sort of attitude I found in the Court of Appeal, which is perfectly understandable.  But this trial did not last one day or two days and they came up with a video and that is it, you are a fraud.  It took 29 days, and it took 29 days of lies, one after the other.  Now, this is one that I can prove.  The barrister misdirected the court.  He told the court ‑ ‑ ‑

GUMMOW J:   Yes, look, you have said that several times, Mr Patrick ‑ ‑ ‑

MR PATRICK:   But that has been fraud.

GUMMOW J:   ‑ ‑ ‑ and I have asked you to finish up.  The red light is on.

MR PATRICK:   Now, as you know, Mr Charteris is not a barrister anymore.  Mr Charteris is a judge and that is for only – you cannot leave the law on the side.  I mean ‑ ‑ ‑

GUMMOW J:   No, we did not know that.  I certainly did not know that, Mr Patrick, and it has nothing to do with anything at the moment.

MR PATRICK:   Okay.

GUMMOW J:   Now, will you finish up.

MR PATRICK:   The law is very clear.  There are three reports that were entered into evidence that were obtained by illicit means.  They were stolen by a doctor from another doctor, and that is the way they made their way into the court, and they knew about the existence of those reports and they misled the court, saying that they did not.

KIRBY J:   I think you are repeating yourself now.  I think we understand your written submissions.  We have seen those.

MR PATRICK:   I guess what I am saying is you cannot look at the overall picture.  You have to concentrate on this point, because this is – the key point on this is that the barrister misled the court, and he was caught, and you wonder how barristers are not allowed to ‑ ‑ ‑

GUMMOW J:   Please sit down, Mr Patrick. 

In the New South Wales Court of Appeal, Justice Hodgson, who gave the leading and detailed judgment of that court, remarked, in paragraph 95 of his reasons, that the question for that court was not whether it was to conclude on the material before it that the appellant had sought to make out a fraudulent case.  Rather, the question before the Court of Appeal was whether the decision of the primary judge showed appealable error or whether the appellant had otherwise not had a fair trial.  In his Honour’s opinion, both those questions were to be answered in the negative. 

The issue on the special leave application to this Court is whether there appears to be disclosed any error in the application of the principles governing appeals which would attract a grant of special leave in this Court.  No such error appears in the judgment of Justice Hodgson.  We are not convinced that there are any prospects of success in an appeal to this Court, nor are we convinced that a miscarriage of justice has occurred, as the applicant has complained.  Accordingly, special leave is refused.  There being no appearance for the respondent, there will be no order as to costs. 

MR PATRICK:   May I answer the Court, because I have to go home and I have to live with this ‑ ‑ ‑

GUMMOW J:   No, Mr Patrick.  We have made our order.  Special leave is refused. 

MR PATRICK:    No, no, I am not asking you to negotiate. 

GUMMOW J:   No, Mr Patrick.  We have said all we have to say.  Please sit down.  The Court will adjourn. 

AT 3.21 PM THE MATTER WAS CONCLUDED