Piepkorn v Hockley

[1991] HCATrans 250

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A37 of 1989

B e t w e e n -

HENRIETTE PIEPKORN

Applicant

and

BRONTE J. HOCKLEY

Respondent

Application for special leave

to appeal and application to

strike out

BRENNAN J
DEANE J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 4 SEPTEMBER 1991, AT 2.44 PM

Copyright in the High Court of Australia

Piepkorn(2) 1 4/9/91

MR G.B. HEVEY:  May it please the Court, I appear for the

respondent, who is the applicant in this

application to strike out the application for

special leave to appeal. (instructed by Wallmans)

MS H. PIEPKORN: Excuse me, Your Honour, I am Ms Piepkorn, I

am the applicant and I asked for this special

hearing of the Court where we argue about Order 69

rule 11. The appeal was held over until I found a

counsellor, and I explained to Justice Brennan,

Justice McHugh and Justice Toohey that in this

State I cannot find a counsellor.	I have submitted
evidence: I cannot find it.	Now, I would like to

know, from the High Court, a rule that governs

them, an order and a rule that governs them, that

they can deny a criminal offence from proceeding
onwards. The Full Court in the Supreme Court, they

refused to take action against the trial judge when

he took two plaintiffs. I put my case in for

criminal and the other party put it in for

limitations and it was dismissed on limitations and

I am getting filed on for the action that I was the

one who delivered it. I did not employ the

respondent's solicitor to act for me, which she put
on the back of her appearance paper and the

respondent also puts in all the time that they are

acting for me. They are not.

Now, you have got Order 16 in the High Court Rules book that states about taking two plaintiffs.

Now there is no similarity in the case that the trial judge did and the supreme court did either.

Now I have done my hardest - - -

BRENNAN J:	Ms Piepkorn.
MS PIEPKORN:	Yes.

BRENNAN J:  Mr Hevey has an application. He has an

application to strike out the application for

special leave, and as the applicant in that

application, he is entitled to be heard. When he

has finished saying what he has to say we will hear

what you have to say in reply to that.

MR HEVEY:  May it please the Court. Your Honours, this

application is an application to strike out the

application for special leave to appeal which has

been brought by Miss Piepkorn.	The application is
supported by two affidavits by

Miss Margaret Byrnes, who is a partner in the firm,

Wallmans, who are my instructing solicitors and the

solicitors for the respondent in the application

for special leave.

BRENNAN J: There is a notice of motion we have, but I am

not sure that we have any supporting affidavits.

Piepkorn(2) 2 4/9/91

MR HEVEY:  I beg your pardon, Your Honours, I expected that that had been filed with the notice of motion.

BRENNAN J: Well then, has it?

MR HEVEY:  If it has not been filed, sir, I will hand it up.

I apologize to the Court, I just assumed that this

had been done in the normal course of events, that

the two affidavits had been filed.

BRENNAN J: Well, has Miss Piepkorn been served with these

affidavits?

MR HEVEY:  I understand she has, sir. In fact, one of the

affidavits goes to the question of service so that

Miss Piepkorn would be here today.

BRENNAN J:  I see.

MS PIEPKORN: In the notice I received from the respondent

it was the date for tomorrow morning, at 9.30, not

for today. Frank Jones got me an appointment for

today for the argument on the Order 69, rule 11.

That is my hearing today, and the respondent was

tomorrow.

MR HEVEY: Quite simply put, sir, if I can: the matter came

on for hearing last year before this Court.

BRENNAN J: Just a moment till we have a look at the

affidavit.

MR HEVEY:  Yes, thank you.

BRENNAN J: Well, Mr Hevey, we have seen the affidavit. We

have also seen Miss Piepkorn here today. I wonder

whether the process may not be advanced if we were

to hear you in opposition to the grant of special

leave, rather than anything else.

MR HEVEY: That might be appropriate in this case, sir, if

it be dealt with now.

TOOHEY J:  The motion itself, Mr Hevey, does not identify

the basis upon which the application is to be

struck out.

MR HEVEY:  No, it does not, sir. That is why I had assumed

that the supporting affidavits had been filed

because·it was something that came to my attention

at the time. It is basically that nothing has been

done for the last 12 months to further the action

in any way whatsoever.

BRENNAN J: There is, of course, a problem of audience of

Ms Piepkorn in an application for special leave.

Piepkorn(2) 3 4/9/91

But she is entitled to be heard in response to your

application.

MR HEVEY:  Yes, I accept that, sir.

BRENNAN J:  The striking out. So I presume that whatever

she wishes to say can be said in the second of

those capacities if she wishes to say it there.

MR HEVEY:  With respect, sir, I would adopt that course. think that it may save a lot of time in the long
run, one way or the other. I

BRENNAN J: Is there anything else you wish to say?

MR HEVEY:  No, sir. The basis for the application is that

nothing has been and done in the last 12 months and

at the hearings in Adelaide this time last year, on

23 August, the applicant was given the opportunity

to arrange her affairs in such a way as the matter

could be properly presented to the Full High Court. That has not happened and we do apply to strike out

on that basis. May it please the Court.

BRENNAN J:  Ms Piepkorn, you are entitled to be heard to

respond to Mr Hevey's application to strike out

your application for special leave. You are

familiar with the difficulties that you have about

appearing to apply for special leave but, in a

sense, you have been saved by Mr Hevey's

application. So you can say whatever you wish to

say in responding to Mr Hevey's application.

MS PIEPKORN:  Your Honour, I am not discontinuing my case in

the High Court. I have received new evidence in a

Full Court hearing of 2877 this year from

Justice King, Justice Olsson and Justice Mohr that

the respondent intentionally intended to cause me
grievous bodily harm by referring me to a mentally

unstable doctor to cut me open on a sprained wrist

and cause two endangering operations on the

property of the applicant.

Now, I have argued the point that I was

informed from the police, when after heard it in

the court 991 of 1984, I was informed from the police I had to verify first if the respondent

really did it - what he was accused of. I tried

several solicitors; they refused to do it and I -
after going to the attorney, finding out I could do
it myself, I did. His reply was, from the
respondent's solicitor, he was fully aware of the

fact of having twice the body damaged.

Now, that is trespassing on to a body. If you

just have a sprained wrist there is no need to cut

that body open, endangering its life by two loose

Piepkorn(2) PIEPKORN 4/9/91

pins and getting refused medical treatment, and he

swore to it that he did this. And in appeal

No 2877 of 1990, Justice King confirmed the fact that the doctor was mentally unstable, which confirms the fact which was said here in the last -

Full Court of the High Court last year. I said

that Justice King stated that he could not charge
the respondent. Now he just verified why he could

not, because he referred me to an unstable doctor.

Now, the medical power is being taken off

separately, but the thing is it has turned into an

attempted murder situation now, because if he

intentionally caused me grievous bodily harm which,

in the law of Australia, states a person is

intentionally - which he was fully aware of because

his duty is to preserve life, not endanger it.

Now I would like this matter to be heard

because the supreme court refused to take my action
for the criminal charges, because I was not a

solicitor.

BRENNAN J:  Ms Piepkorn, you understand that we are here

considering an application for special leave from

the judgment of the Full Court in the particular

case which appears in your application book.

MS PIEPKORN: That is right.

BRENNAN J:  Now we hear cases by special leave when there is

some important question of law to be determined.

We do not hear cases afresh.	We do not hear
witnesses, you understand.

MS PIEPKORN: That is right, sir. I know this, I realize

this. Now the argument with the Full Court was

also - if you look in the appeal book on pages 28

and 29, you note on the appearance paper from the

respondent's solicitor, I am stated as the

plaintiff, and when you look on the back page of it

it states down the bottom: "Wallmans, Solicitors
for the Plaintiff".	Now, I did not employ that
company.	I did not employ them to deliver a

limitations action for me, which they did and

Chief Justice King stated it was dismissed on limitations.

Now the tortness of the judgment is that they

refused to make me accountable for the costs and
everything, which was not my case. They refused to
accept the fact because there has been prejudice

against me because I am not a solicitor. I had

nothing - biased benches and prejudiced benches on

the fact.	Now I have argued the point with the
Full Court of the Supreme Court about this fact.	I
have argued with the trial judge about that fact
too and there is no similarity between a criminal

Piepkorn(2) 4/9/91

charge of him admitting to cause me grievous bodily

harm. If the first lot of - the first thing I put
into the supreme court then it states, if he swears

to cause me grievous bodily harm then the trial judge takes his judicial duties to do something about it.

BRENNAN J:  Now, Ms Piepkorn, would you look at page 16 of the appeal book. Look at the paragraph at the

bottom of that page, the one that starts of:

The appellant has argued before us -

do you see that?

MS PIEPKORN: Yes.

BRENNAN J:  Now that paragraph which runs on to page 17 says

that you were making a complaint against Dr Hockley and it was necessary for you to prove that whatever

error Dr Hockley caused was the cause of your

damage.

MS PIEPKORN: That is right.

BRENNAN J:  And the Full Court said that you had not proved

at the trial that there was any causal

relationship.	Now, do you quarrel with that
statement.

MS PIEPKORN: At that time I did not have sufficient

evidence to prove that point.

BRENNAN J: Well now, if you did not have the evidence then,

we do not in this Court receive further evidence.

MS PIEPKORN:  The only evidence I had was he admitted to causing me damage. Now the damage is they cut me

open and I explained to them, they put me a pin in,

which was verified from a surgeon. I explained

that to the trial judge and to the Supreme Court -

Full Court and they refused to accept it because

the name in this game, in this State, is "no touch

judges: no touch the medical board" - it is an

agreement between the bench and the medical board.

Now, I am the one with the damage. Mr Hockley

has admitted to it. Now he has fully admitted to

being aware of it and even sending me to a mentally

unstable. doctor which the Full Court verified.

Now, I have all the proof here to prove it was

really a criminal action - what was done from

Dr Hockley, and I have proven it and the justices

have just refused to believe it. Now I can go

further, but I would like this settled, once and

for all, in this Court.

Piepkorn(2) 6 4/9/91

Now, the respondent also made defamation

against my mental characteristics.

BRENNAN J: Now, before you go on to that: you want it

settled in this Court because you want this Court

to change the findings that the courts made in

South Australia?

MS PIEPKORN: That is correct.

BRENNAN J:  Now, I have explained to you that we do not hear

evidence.

MS PIEPKORN: That is right.

BRENNAN J:  We hear only appeals on the evidence that was

before the court in South Australia. You said that

at time that this case was before the court in

South Australia you did not have the evidence which you say you now have?

MS PIEPKORN:	I did have the -
BRENNAN J:	How then can this Court entertain the appeal?
MS PIEPKORN:	Your Honour, I had the evidence about the pin

situation. I had the evidence that the pin was put

in there - into a sprained wrist. Now Dr Hockley

and - he made the X-ray, he had the surgeon open me

up on that X-ray.	Now I had a pin put in for a
sprained wrist.	Now if I had a sprained wrist and

there was nothing else wrong then damage was caused

to me. Now this - - -

BRENNAN J:	Ms Piepkorn, you seem to overlook continually the evidence which you called from Dr Hayes
himself.
MS PIEPKORN:	No.

BRENNAN J: Well then, if you look at page 132 of your

appeal book - perhaps if we could go back to
page 131.	Dr Hayes was asked:

At the time you performed that operation did

you believe that there was no damage to the

scapho-lunate interosseous ligament?

And his answer was:

Yes.

MS PIEPKORN:  Your Honour, if there was no damage, which he

later on in Justice - the trial judge - evidence

gave that there was damage there. Now, if you look on exhibit F2a page 126 - I had that X-ray done the

following year and in his letter to my solicitor at

Piepkorn(2) PIEPKORN 4/9/91

that time he originally changed around that there

was no damage from that X-ray. That was page 123,

paragraph 4, where it there says the "Arthrogram".

If you look down where:

There is damage to the scapho-lunate

interosseous ligament -

he imposes the word "(No)". Now as he swore in

court there was no damage to me at that time from

that X-ray. But if you look on page 126:

It would be useful to see any previous

examinations to see if this was present at the

time of the original injury.

Now what injury was this he was talking of. I asked

him in the trial with the trial judge what injury

he was talking about.	He said, "The one you had
from work".	I said, "But you corrected that
injury.	You said there was no injury in that
X-ray".	He said, "Oh yes, it was". Now he cannot

change his story from one court case to the next

and then the court just turn its back on this

evidence and then just put it together for

limitations.

And then the respondent, he stated he was

fully aware of this. Now one minute, if you look

in Justice Matheson's judgment, he states on

page - - -

BRENNAN J:  The conclusions are on pages 11 and 12, if that

is what you are looking for.

MS PIEPKORN: Well this one, he has not written in his - in

Justice Matheson's - it is a bit hard to find. He

states he is guilty of criminal negligence because

he allowed the X-ray to leave in that state with an

error in it.

BRENNAN J: Now, Ms Piepkorn, I think perhaps that you

should come now to whatever point you wish to make

about the reason for special leave to be granted to

you to raise these points that you want to raise.

MS PIEPKORN:  I want this because the bench was biased to

me. It made a tort judgment and he was prejudice

because I am not a solicitor. Now I have no

solicitor - I went - I informed - I sent all the

evidence to the Registry of the High Court, of a
counsellor I approached to go for me to the High

Court.	He was all for it until he wrote to the
Legal Services Commission.	They wrote back an
action for limitations.	I said, "I do not want the

limitations; I want the two-plaintiff situation,

because I never brought any limitation and the

Piepkorn(2) 4/9/91

court judged the whole case wrong. They did not

charge it on the criminal effect that I wanted it

to be charged on. They charged it on limitations,

which I did not want - which I could have had,

because in the law it states, if a new accusation

is made then the time limit starts from that time

that the new accusation was made, not from when he

did the X-ray.	From that time it was sworn that he
made the mistake.	Now I do not want limitations.

He swore to causing me the grievous bodily harm. I

am the one that has to live with two loose pins for
a sprained wrist and the trial judge and the

Full Court just basically refused to give me the

judgment for my case. They want me to pay the

costs for the Limitations Act; they want me to take

on the respondent's case; they cannot impose that

case on to me because I never went to the court for

it.

Now that is wrong in a court of law, to make

me take on another person's case, when I won my

case; I won it, because he swore to my charges.

And if he swore to my charges I do not care if

there is no money involved in this, but I want

justice done. I want this done properly and

Your Honour, if it does not go any further, I am

afraid I will have to go to the Commonwealth about

it, I am sorry to say.

BRENNAN J: In this matter, having read the judgments of the

trial judge and of the Full Court, the Court is not

satisfied that there are any grounds for the grant
of special leave to appeal. Accordingly, special

leave to appeal will be refused, with costs, and it is unnecessary to make any order on the application

for the striking out.

AT 3.10 PM THE MATTER WAS ADJOURNED SINE DIE

Piepkorn(2) 9 4/9/91