Pelechowski v Registrar Court of Appeal

[1998] HCATrans 339

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S62 of 1998

B e t w e e n -

KARL PELECHOWSKI

Appellant

and

THE REGISTRAR
COURT OF APPEAL

Respondent

Application for the appointment of a next friend

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 25  SEPTEMBER 1998, AT 10.47 AM

Copyright in the High Court of Australia

MR A.J. McQUILLEN:   If your Honour pleases, I appear for the appellant.  (instructed by Greg Walsh & Co)

MR R.P.L. LANCASTER:   I appear for the respondent.  (instructed by the Crown Solicitor for New South Wales)

HIS HONOUR:   I do not have a copy of the judgment of the Court of Appeal.  Have you the appeal papers in the Canberra matter?

MR McQUILLEN:   I do.  There are a number of judgments ‑ there are three of the Court of Appeal which deal consecutively with ‑ ‑ ‑

HIS HONOUR:   What is the matter on which special leave has been granted?  I could not follow that from the papers which were in my file?

MR McQUILLEN:   On the question of the jurisdiction of the District Court to issue an order in the nature of a Mareva injunction which was issued immediately after judgment.  A judgment had been obtained by the plaintiff in the proceedings against Mr Pelechowski and another person and there was on foot a motion for an order in the nature of a Mareva injunction which was not dealt with ‑ ‑ ‑

HIS HONOUR:   How did they come up in the contempt proceedings?

MR McQUILLEN:   Mr Pelechowski subsequently did what the order forbade him from doing in that he went and encumbered the property which was the subject of the order.  The result of that was that the matter went through the processes of being brought to the attention of the District Court, it was dealt with in the fashion provided for under the relevant legislation, which was that another judge determine whether or not there was a case in so far as there was contempt of the order of the court ‑ ‑ ‑

HIS HONOUR:   What did he actually do?

MR McQUILLEN:   He encumbered the property and the order restrained him from doing anything by way of encumbering the property.

HIS HONOUR:   I see.  So the issue that would be argued on 8 October is purely the legal issue as to whether there is jurisdiction in the District Court to issue a Mareva injunction?  Is that the only question?

MR McQUILLEN:   I think there is the question of severity of the sentence is also a ground of appeal.  He was imposed a 6-month custodial sentence by the Court of Appeal, after hearing the matter - it heard the matter at first instance.  Bail has been granted.

HIS HONOUR:   Bail has been granted on condition that he appear regularly at St Marys Police Station, is that so?

MR McQUILLEN:   Correct. 

HIS HONOUR:   And he has been doing that.

MR McQUILLEN:   We understand so. 

HIS HONOUR:    He just will not contact his solicitors.

MR McQUILLEN:   Correct, your Honour.

HIS HONOUR:   Is the inference that he does not want to proceed with the proceedings in the High Court?

MR McQUILLEN:   No, your Honour.

HIS HONOUR:   Or that he has withdrawn instructions from the solicitors?

MR McQUILLEN:   We do not know, your Honour.  We believe that Mr Pelechowski may have a medical condition which manifests itself in a manner such that he has chosen, either deliberately or not deliberately, to communicate with his legal representatives.  Hence the reason for us coming here because we do not want to be in the position where it may be said that Mr Pelechowski, if for some reason he were not to comply with any of his bail conditions – and indeed one of those conditions is that he surrender himself to the sheriff in Sydney on the day of the hearing in Canberra – if for any reason he were not to carry out those requirements or do anything, we are in the position where we want to have a situation where we can obtain proper instructions in relation to any matter involving the appeal.

HIS HONOUR:   But what assurance do we have, in the light of the fact that he has not responded to the solicitor’s inquiries, that he will conform to the obligation to appear in Canberra to answer to any order that the Court might make?

MR McQUILLEN:   There is nothing at the moment.  We have been in communication with the police station.  We understand that he is complying with the reporting conditions.  There is nothing.  What we are concerned with, your Honour, is that if he were to – one, we cannot communicate with him in relation to any aspect of these proceedings.

HIS HONOUR:   But do you need instructions or is the matter within instructions already given and, really, matters that can be placed before the Court within the compass of those instructions?

MR McQUILLEN:   We believe the matters can be placed before the Court in the compass of those instructions.  It is only that Mr Pelechowski may be a person – and I say this “may be” – may be a person of unsound mind.

HIS HONOUR:   What is the relief that you are seeking?  You are seeking your solicitor to be appointed a guardian ad litem, do you?

MR McQUILLEN:   Yes.

HIS HONOUR:   What is the power to make that order?

MR McQUILLEN:   Your Honour, the difficulty I foreshadowed is that it appears under the Rules that the situation is not covered.   I would be submitting to you that it is obviously a matter, in those circumstances, if it is not covered by the Rules, that it is in the inherent jurisdiction of the Court to control its processes and to ensure that justice is done.  Now, that is my reading of the Rules. 

HIS HONOUR:   Where is the rule relating to the appointment of a guardian ad litem?

MR McQUILLEN:   It deals with persons under disability, Order 16, rules 19 and 21.

HIS HONOUR:   But how do I know that Mr Pelechowski is a person of unsound mind?  All I have is a hearsay statement by the solicitor with nothing else.

MR McQUILLEN:   Precisely, your Honour. 

HIS HONOUR:   The fact that he does not contact the solicitors, despite their urgent requests – there are plenty of people who do not do that who may not be unsound of mind, just dilatory or incompetent or distracted by other things or do not care. 

MR McQUILLEN:   Can I say this, your Honour, that in the background of all of this, which is in the affidavit, is that this man is to face a trial on Monday in the District Court.

HIS HONOUR:   What is that for?

MR McQUILLEN:   He is charged with, as I understand it, your Honour, some threat upon a judge of the District Court.

HIS HONOUR:   A threat to a judge?

MR McQUILLEN:   Yes.  I cannot elaborate at the moment any more because I am not involved in that matter.  Suffice it to say that my instructing solicitor, Mr Walsh, has instructions to appear in respect of that matter.  Now, as I understand it, I understand there has been an application to vacate the trial date previously.  That has been refused.  I understand the Chief Judge of the District Court refused that.  He is therefore under warrant or whatever to appear before the District Court at his trial on Monday.  There are separate civil proceedings, workers compensation proceedings, which were listed for hearing, which we have approached the workers compensation judge and had those proceedings vacated.

HIS HONOUR:   That was Judge Davidson?

MR McQUILLEN:   Judge Davidson, yes, and he is part heard in the matter. 

HIS HONOUR:   Does that part heard proceeding deal with anything to do with a mental disability or not?

MR McQUILLEN:   I believe there is a claim in that in respect of some psychiatric trauma as part of it, but it is essentially a back claim in respect of his former employment.  Accordingly, my instructing solicitor believes that it may come about that if the District Court were to issue a warrant for his arrest to stand his trial on Monday ‑ ‑ ‑

HIS HONOUR:   He may turn up for his trial, as he has at police stations.

MR McQUILLEN:   He has not turned up or done anything in relation to any other court appearance.  I am only foreshadowing what might happen.

HIS HONOUR:   Would it be wiser to stand this matter over to see whether he turns up for his trial on Monday because, if he does not turn up for that trial, the inference may be that he is not going to turn up for this Court?

MR McQUILLEN:   That is our major concern.  My own view is, your Honour, that because he has been complying with the bail conditions of this Court, he will more than likely surrender himself to the sheriff, but in light of what has happened to date, that is why we are making this application to bring to the attention of the Court, and simply because if the foreshadowed consequences do occur in relation to Monday, it would be upon us to explain all of this, as his legal representatives, and we are doing this in anticipation of some problem occurrings.

HIS HONOUR:   Is the matter – how long has been set aside for the trial in the District Court?

MR McQUILLEN:   One week.

HIS HONOUR:   So that that would be concluded one way or the other, if it proceeds, before this Court came to the hearing on 8 October?

MR McQUILLEN:   Allowing even for the Monday holiday, yes, it would be close, that it would conclude.

HIS HONOUR:   What are you actually asking the Court to do today?

MR McQUILLEN:   There is a summons, your Honour, seeking an order that Mr Walsh be appointed the next friend and/or guardian ad litem for the purposes of the appeal.

HIS HONOUR:   And you say there is no rule which covers such an appointment?

MR McQUILLEN:   Your Honour, I could not ascertain, unless we could establish that Mr Pelechowski is a person of unsound mind within the meaning of Order 1 rule 5.

HIS HONOUR:   There is no affidavit save for that of Mr Walsh and the testimony at the end of that affidavit?

MR McQUILLEN:   There is none, except that Mr Walsh indicates that he has expert medical material which would indicate that he has a serious problem.

HIS HONOUR:   Where is that expert – that is not annexed to the affidavit?

MR McQUILLEN:   No, it is not annexed, and my belief is that Mr Walsh did not advert to that, simply because of the problems that may arise without instructions to refer to that sort of material.  But Mr Walsh indicates that he is concerned about his fitness to plead in that ‑ ‑ ‑

HIS HONOUR:   That is relevant to the District Court proceedings, but it is scarcely relevant to the proceedings in this Court.

MR McQUILLEN:   Correct, your Honour.

HIS HONOUR:   Because the issues upon which special leave have been granted are apparently those to deal with the jurisdiction of the District Court and the severity of the sentence and, as I understand it, some complaint about the refusal of the Court of Appeal to provide bail.

MR McQUILLEN:   Yes.  The Court of Appeal - - -

HIS HONOUR:   Was special leave granted on all of those matters or simply on the matter relating to the jurisdiction of the District Court?

MR McQUILLEN:   No, in respect of the excessive sentence also was raised as part of a ground.  The court did raise that question of excessive sentence with me in argument and the grounds were amended in the course of the special leave application to include that as a ground.

HIS HONOUR:   It would seem to me, just at the moment, that they are matters which are either good or bad on the face of the record of the Court of Appeal and can be argued for the advantage only of the applicant.  He is not going to be disadvantaged in any way by any outcome.  He does not become worse off, he simply is no better advanced if his appeal by special leave is refused.

MR McQUILLEN:   Yes.  Can I put it this way, your Honour:  if it were established by some means that Mr Pelechowski was ultimately determined to be, at the time of these proceedings, a person of unsound mind, the question might be raised as to whether or not Mr Pelechowski was able to bring this appeal at all and that is our only concern.  It is not a matter which we can take any further at the moment simply because of our absence of instructions but if the point were to be taken or raised at some future time, it may create problems.

HIS HONOUR:   Yes.  Well, I will just hear what Mr Lancaster has to say about the matter and in the meantime you might have a look at the rules and see if you can find something in the rules that helps the Court to do something.

MR LANCASTER:   Thank you, your Honour.  Your Honour, if the circumstances warranted it, we would not oppose an order in the nature of the orders sought today but in relation to what my friend has said most recently, namely, that the appellant’s representatives are suffering under some absence of instructions, there is no evidence of that before the Court.  Mr Walsh says in his affidavit that he cannot get instructions in relation to the District Court proceedings but there is nothing to indicate that solicitor and counsel who have been acting on the appeal to this point no longer have instructions to act on the appeal or that those instructions have been withdrawn.

HIS HONOUR:   From your point of view, you want the appeal to go ahead on its allotted date and to have determined whether there are good arguments to challenge the order and, if not, that the bail be revoked and that Mr Pelechowski complete his sentence?

MR LANCASTER:   Yes, that is so.

HIS HONOUR:   Is there a power to restart a sentence once bail is granted?  I remember this used to be something that worried me in the Court of Appeal.

MR LANCASTER:   That will be one of the arguments on the appeal.  Chief Justice Brennan indicated on the special leave application that that matter would be dealt with by the Full Court.

HIS HONOUR:   None of these things seem to require the intelligent participation of the appellant.  It is not the sort of case, it would seem to me, where instructions of a specific kind have to be given during the running of the case.  Either there was jurisdiction or there was not in the District Court.  Either the sentence imposed was excessive or it was not.  Either bail should have been provided by the Court of Appeal and was within their power and would not have disturbed the capacity subsequently to restart the sentence or it was not.  They are questions essentially of law or mixed fact and law upon which there is no room for any evidence on the part of the appellant.  So, I am a bit disinclined to remove the case from the list.  The only problem is the one Mr McQuillen has raised, that is to say, whether the appellant on the record, on the material that is now before me, is an incompetent person who should be represented by somebody who will indubitably act in his best interests.

MR LANCASTER:   Yes.  As to that, your Honour, we would say that it would be very difficult for your Honour to find, on this affidavit, that Mr Pelechowski is a person of unsound mind for the purpose of bringing him within Order 16 rule 19, notwithstanding that a person of unsound mind is defined in Order 1 rule 5 in an inclusive way to mean somebody in relation to whom some formal care or management order has been made.

HIS HONOUR:   This also talks of “sue” “as plaintiff”.  It does not seem to be addressed to the problem of an appeal, unless that is covered by ‑ ‑ ‑

MR McQUILLEN:   I think it is covered by Order 1 rule 5.

MR LANCASTER:   Yes, I think that is so, your Honour:

“plaintiff” includes a person seeking relief against another person by a form of proceeding in a Court.

And:

“sue” means commence or take part in proceedings as plaintiff, petitioner or applicant.

So, on the face of those definitions it would seem that an appellant is perhaps within the range of persons covered by those suing as a plaintiff.

HIS HONOUR:   Let us just look at that rule again:

A person of unsound mind may sue as -

appellant –

in a proceeding by the committee, if any, of his person or estate, as the case may be, or, where there is no such committee, by his next friend.

Where is the power to appoint a next friend?

MR LANCASTER:   I would submit that there is not such a power to appoint but there is a consequential power to give leave to amend the proceedings so as to have the proceedings in name, “Mr Pelechowski by his next friend, Mr Walsh”.

HIS HONOUR:   Is your essential submission that though it was proper for the solicitor for the appellant to bring the difficulties he is having before the Court, the evidence which is before the Court is not sufficient to establish that he is a person of unsound mind and that in any case there is no other reason to disturb the hearing of the matter which does not require any instructions which would turn upon the capacity of the appellant and therefore they should just take their place in the list?

MR LANCASTER:   Yes, that is our submission.  The affidavit of Mr Walsh does not indicate that what instructions he must have had on the appeal to date have been withdrawn and the circumstances are not such as to justify an inference that they have been withdrawn.  There is nothing in the nature of the appeal that - - -

HIS HONOUR:   They get close, though, because there have been all these requests and telephone requests and speaking to the appellant’s partner and various other endeavours to get instructions.

MR LANCASTER:   Yes.  Your Honour, I submit that it may be the context of everything else that is happening with Mr Pelechowski’s affairs that has given rise to a general concern.   That is not necessarily a concern that need be felt in relation to this appeal.

HIS HONOUR:   You think the inference is not that he is a person of unsound mind but that he is just overborne by so many other proceedings occurring and that he has just blanked out, as some people do, rather than deal with the proceedings rationally?

MR LANCASTER:   Yes.  There is no indication - - -

HIS HONOUR:   It is not an unknown human reaction to the complexities of life to simply shut yourself off from them.  Sometimes it can be entirely rational.

MR LANCASTER:   Yes, your Honour.

HIS HONOUR:   It is like judges who do not do their judgments.  It is a very rational procedure because it relieves them of the pain and stress of having to do them but it does not show they are a person of unsound mind.  It just shows that they are not attending to their duties.

MR LANCASTER:   I will accept what your Honour is saying to me in that regard.

HIS HONOUR:   It is something of which I have no personal knowledge.

MR LANCASTER:   Your Honour, the affidavit of Mr Walsh does not indicate that, for example, Mr Pelechowski’s failure to return calls is something that is related to the High Court proceedings themselves.

HIS HONOUR:   No.

MR LANCASTER:   So, I would submit that there is no reason this matter cannot proceed as presently constituted.

HIS HONOUR:   Yes.  Of course, it would always be possible, when the matter came before the Court, in the light of whatever happened in the District Court, for the Court to be informed of further developments and to reconsider the matter at that stage.

MR LANCASTER:   Yes.  Those are my submissions.

MR McQUILLEN:   Can I just say, in case there is any misconception ‑ ‑ ‑

HIS HONOUR:   Could you just tell me, first, is there any difficulty with your presenting your arguments as fully and with as many arguments as could be found for the appellant without express oral instructions that would put you or your solicitor at a disadvantage in presenting the case on 8 October?

MR McQUILLEN:   Speaking for myself, I do not believe so, no, your Honour.  There is no difficulty at all.  We have taken the task on board.  The submissions have to be done and the argument prepared.  I do not believe so from my instructing solicitor either.  That is Mr Walsh.  He cannot be here, he is in the criminal jurisdiction, but his – an employed solicitor is here but I do not believe that there is any difficulty there, your Honour.

HIS HONOUR:   Were you brought into it as a result of a suggestion of the Bar Association?  Is that how Mr Walsh became - - -?

MR McQUILLEN:   Yes, I initially came into it – it was a referral direct to me.

HIS HONOUR:   This is a pro bono matter, is it?

MR McQUILLEN:   Yes, legal assistance scheme, direct to me, and then because of the nature of the matter after the hearing in the Court of Appeal Mr Pelechowski was sent to prison and any action taken thereafter required, I believed, services of a solicitor and that is where Mr Walsh offered his services.

HIS HONOUR:   What was the sentence imposed for the contempt by the Court of Appeal?

MR McQUILLEN:   Six months.

HIS HONOUR:   Six months imprisonment.

MR McQUILLEN:   And that would have expired on 3 August, something about that time.

HIS HONOUR:   So, subject to argument of a power to revive, a matter which, I think, was dealt with, if I remember rightly, in the Court of Appeal in a case of - - -

MR McQUILLEN:   Whan v McConaghy

HIS HONOUR:   Well, that is in the High Court.

MR McQUILLEN:   Yes.  Whan v McConaghy though dealt with the power of the Supreme Court.  One has to remember this is a first instance hearing as distinct from a matter where the Court of Criminal Appeal interfered with a sentence and the question of power to do so.

HIS HONOUR:   It still is a question of principle as to how, if you provide bail for a fixed term of imprisonment from A to B, the revocation of the bail revokes - restarts the sentence.  This is the problem.  But, anyway, that is the matter that presumably would have to be argued.  There would be some utility in the appeal because if you cannot restart the sentence then he has served his sentence at large.

MR McQUILLEN:   Precisely.  That was the very matter that the Crown raised on the special leave application and Chief Justice Brennan, as he then was, indicated that in the argument was a question of the power of the High Court to deal with that matter.

HIS HONOUR:   Yes.  Well, I suppose from the High Court’s point of view a question is then presented as to whether the fact that you cannot restart a sentence or that the law does not provide for that capacity, can put out of court a person who complains about the lawfulness of the sentence or its excessive qualities.

MR McQUILLEN:   Yes.  This was an exceptional circumstance case because Mr Pelechowski was granted bail by Mr Justice Gummow on the Burgundy Royale principle because it was an application from a hearing at first instance in an appellate court which therefore denied him an intermediate appellate procedure which is otherwise available and that was the special circumstance that - - -

HIS HONOUR:   So, it was Justice Gummow and not the Full Court granting special leave that granted bail to your client?

MR McQUILLEN:   That is in chambers.  Justice Gummow granted us bail in chambers.

HIS HONOUR:   And that was on condition - - -?

MR McQUILLEN:   Conditions that he report and put on his special leave application and to be heard in May.  It was duly heard in May by Justice Gummow, Chief Justice Brennan and Justice Callinan and special leave was granted and the bail was continued by the Chief Justice.  I have, if your Honour needs to see it, in the appeal book, at page 446 of volume 2, the conditions.

HIS HONOUR:   Yes.  What do you say in relation to what Mr Lancaster has put to the Court, that we should simply proceed on the footing that no proper foundation has been laid to raise sufficiently a question that the appellant lacks the capacity to be an appellant in the Court, that the position will be clarified by whatever happens next week in the criminal jurisdiction of the District Court and that therefore, because of the nature of the matters to be argued on appeal in respect of which you say you are ready to argue them, the hearing date should proceed and at the hearing this Court can make any other orders that are appropriate.

MR McQUILLEN:   Your Honour, we want the matter to proceed.  There is no suggestion that this matter – and we would not want that, your Honour.  The matter must proceed on the 8th.  My and Mr Walsh’s only concerns are whether the matter is properly constituted, having regard to what we have put before the Court.  That is all we can do.  There is a belief in Mr Walsh and myself, having regard to material and the communication with Mr Pelechowski that his mental condition may need to be investigated or that he may have a problem but, we of course, can say nothing further than that because we have no material to put before the Court and there is no evidence.  I have to concede that, your Honour.  Our difficulty lies in the fact that if there is a problem which we have identified, that it is brought to the attention of the Court in this way so that the Court is seized of it in the event that the matter may turn out not to have been properly constituted for any reason.  The problem may not arise at all.  That is simply my answer to your Honour’s question.

HIS HONOUR:   Yes, very well.

MR McQUILLEN:   There are various references to guardians in the Rules, your Honour.  There is Order 52 and, in relation to costs, Order 71 and, of course, Order 16.  If your Honour needed to know, my submission is that under section 16(1) of the Judiciary Act your Honour would have

jurisdiction in chambers to deal with a matter of this nature in case this question arises. 

There is the other concern, your Honour, of course, that it may well be a matter that your Honour cannot deal with in chambers.  It may have to be dealt with in Court but I do not propose to argue that in this application.

HIS HONOUR:   No, very well.

On 7 August 1996 a summons for contempt of court was issued out of the Court of Appeal of the Supreme Court of New South Wales.  The claimant in the summons was the Registrar of the Court of Appeal (the respondent).  The opponent was Mr Karl Pelechowski (the appellant).  The summons arose out of earlier proceedings in the District Court of New South Wales.  It was contended, in effect, that the appellant had taken steps to encumber certain property and had done so in defiance of the orders of the District Court.  As a result of the summons, a hearing of the charge of contempt occurred in the Court of Appeal in July and August 1997.  The Court comprised Handley, Beazley and Stein JJ.  The Court reserved its decision.  On 28 October 1997 the Court of Appeal found the appellant guilty of contempt of court (The Registrar Court of Appeal v Karl Pelechowski, unreported Court of Appeal (NSW), 28 October 1997).  It stood over for further hearing the question of the penalty proper to the contempt found.  That hearing took place on 10 December 1997.  The appellant gave evidence before the Court.  Once again the Court reserved its decision.  On 3 February 1998, the Court published its orders and reasons (The Registrar Court of Appeal v Karl Pelechowski (No. 2) unreported Court of Appeal (NSW), 3 February 1998).  It sentenced the appellant to six months imprisonment for his contempt.  The appellant sought bail to permit an application for special leave to appeal to this Court.  The Court of Appeal refused bail.

On 23 February 1998, apparently as a result of an initiative of the New South Wales Bar Association, Mr Gregory Walsh, solicitor, called on the appellant then in custody.  He received instructions which, presumably, he considered to be adequate for him to act for the appellant in relation to a series of proceedings in which the appellant is now involved.  These included proceedings in the Local Court, now in the Criminal Jurisdiction of the District Court of New South Wales; proceedings in the Compensation Court of New South Wales; as well as the proceedings in this Court.  In relation to the last-mentioned proceedings Mr Walsh was instructed to seek special leave to appeal to this Court from the Court of Appeal's orders and to apply for bail pending the hearing.

On 26 February 1998, pursuant to his instructions, Mr Walsh appeared in chambers before Gummow J to seek immediate relief against the sentence imposed on the appellant by the Court of Appeal for contempt.  As a result of this application, the appellant was granted bail.  The bail was granted upon conditions, relevantly,  that the appellant should file his special leave application promptly, that, when filed, it would be heard in May 1998 and that the appellant report regularly, as directed, to the St Mary’s Police Station in New South Wales.  According to the material placed before the Court in an affidavit of Mr Walsh, it appears that the appellant complied with each of these three conditions.  In particular, he has reported to the police in accordance with the bail conditions. 

On 1 May 1998 this Court, comprising Brennan CJ, Gummow and Callinan JJ, heard the appellant’s application for special leave to appeal.  Special leave was granted.  The appeal has been listed for hearing before the Court on 8 October 1998.  No application has been made to vacate the hearing date. 

However, a problem has arisen for Mr Walsh in securing instructions from the appellant.  Between July 1998 and 18 September 1998, the date of Mr Walsh’s affidavit, Mr Walsh has deposed to repeated attempts to contact the appellant.  On the face of the affidavit these attempts appear to have related principally to the criminal proceedings now in the District Court and to the compensation proceedings, rather than the proceedings in this Court.  Despite all of Mr Walsh’s best endeavours the appellant has refused, or failed, to attend a conference organised with his counsel in relation to the other proceedings.  He has been unavailable to take telephone calls.  Conversations with a person, apparently the appellant's de facto partner, have been equally fruitless.  The appellant has failed to answer countless letters sent to him by Mr Walsh.  The evidence shows that some of these letters were handed to him by police at the St Mary’s Police Station when he attended in accordance with the bail conditions set by Gummow J.

As a result of these difficulties of communication with the appellant, Mr Walsh felt it proper to bring the appellant's conduct to the attention of this Court.  In his affidavit he states that certain matters have come to his attention in the compensation proceedings relating to the psychological wellbeing of the appellant.  He considered it appropriate to state, without disclosing the confidences of his instructions, that there might be a need to have the appellant examined by a medical practitioner in order that issues concerning his fitness to plead in the criminal proceedings were properly investigated.  Whilst this consideration could be relevant to the pending proceedings in the District Court, its relevance to the appeal pending in this Court is more remote. 

The critical paragraph of Mr Walsh's affidavit states:

On Tuesday, 15 September 1998, in the afternoon I had a further telephone conversation with a person who I identified as the same person I spoke to as referred to in paragraph 21 herein.  I asked this person, "Is Mr Pelechowski there?"  The persons replied, "Yes, but (inaudible) because he's unconscious at the moment".  I said, "He's unconscious, is he?".  The person replied, "Yes, semi-conscious really, but this will all be explained in the doctor's report".  I said, "And who is his doctor?".  The person said, "Dr Lagadia".  I said, "And so Mr Pelechowski is too ill to talk to me".  The person replied, "Well, I've been doing all the talking and his just (inaudible)".  I then said, "But Mr Pelechowski has got enough energy to report in person to the police station".  The person replied, "He's doing it because he's afraid".  I further said, "But he's got sufficient energy to go to the police station but he can't speak to me on the phone?".  The person replied, "He's semi-conscious".  I said, "He's not semi-conscious all the time, is he?".  The person replied, "I'm very sorry, I can't accommodate you at the moment".  I further said, "Alright, I've still got to proceed with the application for appointment of tutor, in respect of both the workers compensation and the High Court proceedings".  The persons replied, "Yes, we can do that, we are a family.  We will take care of Karl's affairs.  You are his lawyer an you can take care of the legal affairs, but we can take care of him until he returns to health.".  He conversation that ended. [sic]

The summons before the Court asks for the appointment of a next friend and/or guardian ad litem for the purposes of the appeal.  It seeks directions, including "that personal service of this summons on the appellant and any orders made herein be substituted by service on the Officer in Charge, St Marys Police Station".  In view of the course which I propose to take, it is not necessary for me to decide whether it is within my power in chambers to make orders of the kind sought and, in particular, whether, in circumstances such as the present, it is possible within the Rules of Court or the inherent or implied jurisdiction of the Court, to appoint a next friend or guardian ad litem for the purposes of the appeal.

In my opinion, the submissions for the respondent should be accepted.  I would not infer from the evidence which Mr Walsh has placed before the Court that it has been demonstrated that the appellant is suffering from such mental incapacity or disability as requires the substitution on the record of a next friend or guardian ad litem, assuming that to be possible and otherwise appropriate.  One explanation for the appellant’s failure to contact his solicitor may be that, faced with proceedings in three courts including criminal proceedings which are due to commence at a trial in the District Court on Monday next, the appellant is overwhelmed by his predicament and is simply refusing to address his obligations in a rational way. 

So far as the orders of this Court are concerned, the evidence shows that he has conformed to the bail conditions fixed by Gummow J.  I would not infer, on the material now before me, that he will not, if it be within his power, attend to surrender himself to conform to the order of this Court following the disposal of his appeal. 

The appeal is one in which the necessary papers are ready to permit the hearing to proceed.  Counsel for the appellant has indicated to me that he faces no difficulty at all in presenting the arguments for the appellant in the appeal.  No question arises as to the position of the respondent in the appeal.  The written arguments of the parties have been prepared.  Nothing has been said to suggest that evidentiary instructions to the solicitor for the appellant will be required in order to render the hearings of the appeal possible.  As explained to me, the appeal would seem to raise issues of law and of principle.  Those issues could be adequately disposed of on the materials which are in the record of the courts below and now before this Court.  They require, and permit, no supplementation by evidence from the appellant.

Therefore, although it was proper for Mr Walsh to bring his difficulties before the Court, I do not consider that it is appropriate, on the information before me, to make the orders sought in the summons.  By the time the proceedings are listed before the Full Court for hearing on 8 October 1998, the outcome of the criminal proceedings in the District Court will be known.  At that stage it is possible that further information will be in the possession of the parties which may ground a further application, either to a Judge in chambers or to the Full Court.  Nothing I say today stands in the way of such a further application.  However, on the material now before me, the application in the summons should be refused.

Because it was proper for Mr Walsh to bring the summons, I consider that the costs of the summons should be costs in the appeal to the Court.  I certify to the appearance of counsel in chambers on the hearing of the summons.

MR McQUILLEN:   Your Honour, could I just ask should it be necessary to apply to the Court, could the summons remain standing so that this summons could be reactivated, or is it necessary to require a further summons?  Of course, if it was in chambers it would be a different matter, but to the Full Court, if it could be reactivated, that summons, it would save us all.

HIS HONOUR:   Is there any reason why that course should not be adopted to save time and costs?

MR LANCASTER:   No, your Honour.

HIS HONOUR:   In the event that the proceedings need to be reconsidered by the Court, on the basis of further evidence then available, the proceedings may be brought before a Judge in chambers on the summons which is presently on the file.

MR McQUILLEN:   If the Court pleases.

MR LANCASTER:   May it please the Court.

HIS HONOUR:   Court will now adjourn.

AT 11.33 AM THE MATTER WAS CONCLUDED