Piepkorn v Hockley

[1990] HCATrans 192

-!i,,~USTRALIA,,it-

-- -~'.»~~..._--.;

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

BRENNAN J

TOOHEY J

McHUGH J

Piepkorn 1 23/8/90

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 23 AUGUST 1990, AT 4.17 AM

Copyright in the High Court of Australia

BRENNAN J:	Ms Piepkorn.
MS H.PIEPKORN:	Your Honour, I do know of rule 69A of the

High Court rule book.

BRENNAN J:  Just a moment, Ms Piepkorn. You are appearing

here to apply for special leave to appeal?

MS PIEPKORN:	I am, yes.
BRENNAN J:	And Mr Frayne?
MR M. FRAYNE:	Your Honour, I appear for the respondent.

(instructed by Wallmans)

BRENNAN J:  Ms Piepkorn, you have been in Court, you have

heard what happened in the last case?

MS PIEPKORN: Yes, I have, sir, but I would like to make a

note of this; I contacted several different

counsellors in this State. This State refuses me

legal representation and I have applied in Canberra

to a counsellor. I sent him all the necessary

papers and his reply was he is not going to

represent me on the grounds that everything is

written down in the book and on the second ground

of - if you look in exhibit B, page 29, where the

respondent's solicitor states that they were

solicitors for the plaintiff. I did not employ

them and I explained this to him and he said he is

not going to appear for me because of legal

professional ethics.

First of all, the first lawyer that I did have

in case.991 of 1984, if you look in exhibit c,

Justice Bollen, he states in there there is another

case that developed out of this mistake the

respondent made and he advised my solicitor to go

with me to court. He refused. He would not go.

So I wrote to the Attorney-General who stated I can

appear myself in court, and. according to the

Commonwealth law I can represent myself except I am

not allowed to ask for any money like another

solicitor is allowed to do, and where I cannot

bring out any legal points of view the bench has to

take the action for me.

Now, I have tried everywhere and I - when I

had a solicitor I appeared in front of

Master Kelly, at exhibit G, and they wanted to change the charge over to limitations and if you

read this letter I wrote to Master Kelly I did not

go for limitations. When I appeared in case 2504

of 1987 to the supreme court, apparently the trial

judge accepted two plaintiffs and when I appeared

to the Full Court and presented to the Full Court

about the two plaintiffs that the trial judge

Piepkorn 2 23/8/90

accepted they would not take the exhibit to show

that she claimed that she was acting for the

plaintiff and they said I have to pay the costs.

Now, the trial judge dismissed it on

limitations which I did not do. I went to court to

establish the admission that he sent me - that was

exhibit J. When he sent me that after I sent him a

letter explaining to him the accusations brought

out in case 991 of 1984 with these two people who

made this accusation that he was at fault for

having my sprained wrist unnecessarily operated on,

a reply came back but it was not signed by him. So

I have to verify if he really made this mistake.

So I presented him to court. I had him on the

witness box and he admitted to it.

Now, if he was so aware of it - I explained

this to the trial judge and to the Full Court - if

the respondent was aware of this mistake he had two

months to stop the first cutting open of the

sprained wrist, then he could have stopped the

second operation I had in 1984. When I questioned

this person on the witness box he said there was no

damage to cause this but if he - he passed that

X-ray radiology report and he did not say anything for four years until I was up in a common law case,

991 of 1984 in 1986, I found out that I was really

unnecessarily operated on and if you read

Justice Bollen's comparable verdicts, he stated it

was a ligamentation strain and I had surgery, but

he does not explain that the X-ray was a mistake

and I was opened up for nothing. Now, I do not

see any reason - - -

BRENNAN J:	Mrs Piepkorn, you are starting to get upon the merits of your case and you face this problem that
I think you are familiar with now that this Court
will only hear applications for special leave to
appeal when there are qualified people
independently acting for others who will make the
application as counsel.
MS PIEPKORN:	Sir, you name me a lawyer firm who will do it

and I will present you a counsellor.

BRENNAN J: Well now, that raises a very great difficulty

for you because you have had difficulties in

getting firms to represent you.

MS PIEPKORN:  Yes, sir, and I have a case on in the

district court. I sent this particular

judgment from this particular solicitor but he

would not follow my instructions. That is over in

the district court at the moment because he did not

follow my instructions. Now, I cannot get a

solicitor. I have tried top solicitors. There is

Piepkorn 23/8/90

one solicitor here in South Australia that I have

spoken to and he said to me I can represent myself

in the High Court and, as I said, Order 7 rule 4 in

the High Court rule book says I can represent

myself too.

Now, I know it is very difficult to do this

and you have to have a lot of patience maybe with

me but I do not see why I should get gaoled for his offence, what he did on to my person, and twice put

me under anaesthetic and having my life put in

risk -

BRENNAN J: Mrs Piepkorn, we are not now going to hear the

case obviously, but we have got this difficulty

that, no matter what you have been told, the fact

is that you have no right to apply for special

leave yourself, unless it is by counsel. Now, that being the rule, it is a problem that you face as to how you are going to deal with it.

MS PIEPKORN:  There is just no one that will do it. They

say they will do it but when I present my

things to them they say you have to take certain

parts out, they are not going to say it in court.

I mean a lot of things happened with case 991 of

1984 that should have been done too, but I am not

pressing on that. I just want to know why I was

damaged and put into poverty on account of a

mistake and now the legal system turns around and

says they can do it just because of a rule.

Now, I have tried everything else because I

have got the law books from - I even have the

subject of the law books to be able to meet you in

the Court.	Now, I do not find this really fair
from the courts.	I mean, they have got the

Commonwealth law which says you can represent

yourself. I know that you have to have a counsel

but the counsels will not do it. If I tell them to bring it like I say to bring it, they refuse. They

say, "You just don't do that because of ethical

reasons".

BRENNAN J:  Well, that is perhaps the reason why the rule

is there because the counsel stands between the

litigant and the Court in the making of these

applications and that is the reason why the Court

insists on having counsel independently to appear.

Now, do you wish to say anything further,

Ms Piepkorn?

MS PIEPKORN:  I would just like to know why are they

allowed to get away with an offence and the victim

has to pay for it. I would just like to know that,

sir. I mean, they say to go to the High Court - I know that I can go further than the High Court,

Piepkorn 4 23/8/90

talking about the Commonwealth, but I do not want

to do that, because everybody else gets damaged in

it. I mean, if the solicitor puts down they are

acting for the plaintiff to take over a case, it is

just not fair.

I mean, I know all about these difficulties

the Court has and everything like this, but the

first trial judge did wrong, Justice Matheson did

wrong in case 2504 of 1987. The Chief Justice

said, "We can't charge that person because he was
made to do it", but the court will not look into

the fact why he was made to do it or anything like

this and the company doctor was the union doctor,

and I brought this up at the first case and now I

get refused by solicitors, now I get refused from

the High Court as well, just because of a rule.

You put in certain rules and then you say that rule says you have to have a counsellor. I mean,

firstly openly a supreme court judge has two

plaintiffs on his table and whichever way that

respondent answered he took the case where he had
no case to answer for and then the other plaintiff

is supposed to pay for that. Then you are supposed

to have a counsellor who just does what he wants to

do instead of listening to his client anyway.

Now, I know this is the English law, I do know

this, but you cannot even tell the truth because

the courts do not like it, because lawyers are

evasive, misleading. I have learnt that very much

from the lawyers I have met and judges just will

not hear that.

BRENNAN J:  Yes, Ms Piepkorn. Now, for the reasons that

you have heard discussed about the appearance by

counsel, there are only two courses that this Court

can take; one is to stand the matter over so that

you can obtain counsel, the second is to strike it

out.

MS PIEPKORN: Will you stand it over?

BRENNAN J: Well, we will have to hear what Mr Frayne has to

say about that. So we will see what Mr Frayne's

submission is and then you can respond to that

after we have heard it. Mr Frayne.

MR FRAYNE:  Thank you, Your Honour. I would oppose the

application to stand the matter over. A brief

basis for that is, notwithstanding the difficulties

that Ms Piepkorn has in presenting her case, the

matter has been listed before this Court since

August of last year and the respondent is anxious

to finalize the matter.

Piepkorn	23/8/90
TOOHEY J:	When you say it has been listed before

the Court - - -

MR FRAYNE: Sorry, "listed" is probably the wrong

expression.

TOOHEY J.:  - - - the application was lodged, according to

the index, in September 1989.

MR FRAYNE:	Yes, I apologize - it was September.
TOOHEY J:	Has it been before this Court before?
MR FRAYNE:	No, it has not been before this Court before.

Those are the only matters that I can advance.

BRENNAN J:  Yes. Ms Piepkorn, the Court proposes to stand

the matter over in order that you can obtain
counsel, but it should be understood that when the
matter is next listed before the Court, if you do

not have counsel then, there is every likelihood

that the Court will be forced simply to strike it

out.

MS PIEPKORN:  Sir, can I explain something to you? I had

a medical examination about my injury on the

sprained wrist in April this year. I have a hole

put into a bone, I have a loose pin, I have an

elbow operation and no counsel would take that on,

and that is what you call grievous bodily harm.

BRENNAN J:  Very well. That matter will be stood over.

AT 4.32 THE MATTER WAS ADJOURNED SINE DIE

Piepkorn 6 23/8/90