Penhall-Jones v Stiftung Ausbildungsfonds Jung'she Psychologie

[2006] HCATrans 100

[2006] HCATrans 100

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S355 of 2005

B e t w e e n -

MARGARET PENHALL-JONES

Applicant

and

STIFTUNG AUSBILDUNGSFONDS JUNG’SHE PSYCHOLOGIE

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 8 MARCH 2006, AT 9.18 AM

Copyright in the High Court of Australia

KIRBY J:  

Background to the disposition

On 17 September 1999, the respondent issued a statement of claim out of the Local Court of New South Wales against the applicant seeking to recover the sum of $14,284.24, a sum alleged to be outstanding under two student loans.  

The applicant undertook a course at a teaching institute in Switzerland.  The loan agreements were made in Switzerland, but the applicant now resides in New South Wales, where she was served with process.  In her defence, the applicant claimed that she had been sexually harassed by an officer of the teaching institute and had been unable to complete her studies.  The applicant filed a third party claim against the teaching institute.  She also sought a stay of proceedings or the transfer of the matter to the Supreme Court of New South Wales.  The Magistrate noted that he had jurisdiction in the matter because the applicant was resident in New South Wales at the time of the service of process.  He concluded that the applicable law was Swiss Law.  The applicant claimed that she could not issue the third party proceeding against the teaching institute in Switzerland because the Local Court lacked jurisdiction and this was a reason for staying or transferring the proceedings.  The Magistrate ordered that the applicant’s third party notice be struck out.  He held that it was brought against a separate legal entity and raised entirely different issues.

On 1 July 2003 Magistrate Lulham gave judgment for the respondent.  In doing so, he relied on a letter from the applicant to the respondent, in which she acknowledged that repayment was due.  This contradicted her evidence that she was told the loan was not repayable until completion or until disqualification from the course.

On 23 August 2004, in the Supreme Court of New South Wales, Hoeben J considered a challenge to the Magistrate’s decision which concerned the applicant’s application for a stay of proceedings or to have the statement of claim set aside on the basis that the Local Court was not the proper forum and to issue a third party notice.  Hoeben J noted that the application was made some three and a half years after the motion had been decided by the Magistrate and that both an extension of time and leave to bring an appeal were required to permit the applicant to prosecute it.  Hoeben J noted that the decision of the Magistrate was discretionary and that nothing had been put which demonstrated that it was a proper case for granting an extension of time or leave to appeal.  The application was dismissed.  In a separate determination, Hoeben J also decided adversely an appeal against the Magistrate’s determination that the applicant was liable under the loan agreements.

The applicant required leave to appeal to appeal from Hoeben J’s orders to the Court of Appeal of New South Wales.  The application was considered in chambers and was rejected.  It was refused on the ground that no error had been shown on the part of Hoeben J in disposing of the first appeal and insufficient grounds for doubting the outcome of the second.

In her draft notice of appeal in the Court, the applicant states that the Court of Appeal ‘exercised their discretion to refuse leave to appeal in an overly restrictive manner, which resulted in a miscarriage of justice’.  She claims that her application concerns ‘the serious irregularities that the respondent won its case by placing two demonstrably false and misleading affidavits into the court.’  Her written case identifies six questions of law which she claims warrant a grant of special leave to appeal.  In substance, these relate to her status as a self-represented litigant and errors said to have been made in the decisions below.

Disposition of the application

The application does not raise any questions of law that would warrant a grant of special leave to appeal to this Court.  It is axiomatic that there is a right of self-representation before all of the courts concerned.  Similarly, the general principles governing the conduct of proceedings in an adversarial system and their application to litigants who are not represented by legal practitioners are well-settled.  The application of the law to the facts of this case do not give rise to a question of law that would warrant a grant of special leave to appeal.

Further, the questions posed by the applicant with respect to proof of foreign law do not give rise to an arguable case. It is also well-established that a person, wishing to rely on foreign law, must ordinarily lead evidence of the state of that law.  In relation to the submission that a forum which has no provision for service overseas is prima facie an oppressive forum for the defendant, and therefore inappropriate, that issue did not arise in this case because the respondent was obviously amenable to the jurisdiction of New South Wales courts, having earlier itself commenced proceedings here.  It was open to Hoeben J to conclude that, to allow the third party notice/cross claim to be agitated in the proceedings for the recovery of moneys lent by the respondent, would be unfair to the respondent.  Finally, as the applicant states in her written case, she has now repaid the entire amount of the loan.  It is therefore questionable whether the points raised by the applicant are not moot.

In these circumstances there is no basis for the grant of special leave to appeal to this Court from the Court of Appeal of New South Wales.  The application should be refused.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.  I publish the disposition signed by Heydon J and myself.

AT 9.23 AM THE MATTER WAS CONCLUDED