Piepkorn v Perrett Harrison & Partners

[1997] HCATrans 250

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A55 of 1996

B e t w e e n -

HENRIETTE PIEPKORN

Applicant

and

PERRETT, HARRISON & PARTNERS

Respondent

Application for special leave to appeal

TOOHEY J
GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 4 SEPTEMBER 1997, AT 11.26 AM

Copyright in the High Court of Australia

MS H. PIEPKORN appeared in person.

TOOHEY J:   Just before you begin, I hold a certificate signed by the Deputy Registrar in these terms:

I have been informed by Wallmans, Solicitors for the respondent in the above matter, that the respondent does not wish to be represented at the hearing of the application for special leave to appeal and will submit to any order of the Court, save as to costs.

Yes, Ms Piepkorn.

MS PIEPKORN:   I have this - can we turn on the application book on page 31, please, of the summary.  This main application deals with the fact that I have been with the - excuse me, I have got a bad cold - it appeals with the application - I have forgotten the words - Conciliation and Arbitration Act, 144A(5).  Now, the application of the summons of 195 of 96 was dismissed from the Supreme Court on the grounds of the State’s third party employer.

TOOHEY J:   What do you mean by 195 and 196?

MS PIEPKORN:   This was action 195 of 96 was put into the Supreme Court on the grounds that I was by the Industrial Courts and they refused to handle my case on the matter of a third party and a statement of claim was dismissed.  That is page 1.

TOOHEY J:   The numbers you mention are the numbers of the proceedings, are they, in the Supreme Court ?

MS PIEPKORN:   Yes, 195 of 96 was the proceeding in the Supreme Court which was dismissed and this is why it deals with the Conciliation and Arbitration Act of 144A of the labour law and the fact that it deals with my employment contract.  The justices from the Full Court agreed with the chamber judge on the grounds of dismissing it on - a certain other judgment given.  I am sorry about this.  Excuse me, I will go back to it.

That was a new action brought into the Supreme Court because I had trouble with the Industrial Courts because my six years of limitation action to contest my retrenchment from that contract was dismissed because of the third party that the government put in and the comparable verdicts of 3293 of 96 from Justice Bollen.  Now, when I appealed in the Supreme Court to have this matter taken care of, to have the third party removed so I could get my wages, they refused it and they stated I have this third party.  Now, as there is no - there is no one defending it so they give full admission that they were involved in this contract fraud and therefore I ask for the contempt of court and I had my summons that was dismissed heard by the High Court on the grounds that I have a right to have my employment contract to the constitutional rights of the legal right of that contract.

Now, the powers of Parliament states that the State Parliament can enter into a Conciliation and Arbitration Act in industrial matters.  Now, that does not give them the legal right to enter a third party and say that I am employed by that person unless I have my group certificate which is a taxation matter.

TOOHEY J:   I am just having some trouble, Ms Piepkorn, following how this relates to the present application.  As I gather it from the application book, there have been three pieces of litigation, if I can put it that way.  There was an earlier case in which you brought action against your employer, Caroma Industries.

MS PIEPKORN:   That is correct. 

TOOHEY J:   Liability was admitted for that injury and damages were awarded to you.

MS PIEPKORN:   Yes.  That was like on a title page.  That was the comparable verdict of 1986.

TOOHEY J:   I just wanted to make sure that I understand what happened.  Later there was an action against Dr Hockley for professional negligence for an alleged error in his report when your wrist was X-rayed.

MS PIEPKORN:   That is correct.

TOOHEY J:   And Justice Matheson found that the error caused no loss and there was an appeal to the Full Court by you and that was unsuccessful.  Now, the present application relates to an action that effectively has been struck out.

MS PIEPKORN:   That is correct.

TOOHEY J:   That is an action against Perrett, Harrison & Partners in which you allege, in effect, a conspiracy, is that right?

MS PIEPKORN:   The point is on that point of fact - - -

TOOHEY J:   But have I understood the sequence of litigation?

MS PIEPKORN:   The sequence, yes, that is how - but if you would please turn to the rulings of Judge Burley.  He entered Justice Matheson’s judgment in that judgment, yes, the statement of claim and everything from Perrett Partners.  It is on page 2, the reasons of Judge Burley.

TOOHEY J:   Yes.

MS PIEPKORN:   On page 17 where he entered Justice Matheson’s judgment, you go down in line 9 where Justice Matheson states that Perrett & Partners, Hockley:

leave his rooms with a typographical error constituted negligence on the part of the defendant.

Now, the trouble here was he - - -

TOOHEY J:   Can I interrupt you.  That is not quite the way the judge puts it.  He says, at line 6:

I add that assuming, but without deciding, that to allow the report to leave his rooms with a typographical error constituted negligence on the part of the defendant, I am not satisfied that it caused the plaintiff loss or damage.

MS PIEPKORN:   No, the thing here was that I had to go back against - the new summons was against Perrett & Partner on the ground that I contracted them privately to do me a medical service by doing an X-ray to report on a medical injury.  Now, they were not contracted - I did not go to them through the firm.  I contracted them privately.  Now, the whole thing is that this was put together with the firm and they stated that I had - the matter was I had a broken hand but that was not what the State refused to do medical treatment about.  The State refused to treat me medically on the grounds of a dislocation which prevented me from working.

TOOHEY J:   But your present action is an action against the firm.

MS PIEPKORN:   That is right.

TOOHEY J:   In which you allege a conspiracy, is that not right?

MS PIEPKORN:   That is right, and the thing here is that the State Medical is always in industrial common law cases, the third party.  So whatever medical explanation they give, and it can be on perjury, they are always protected on the grounds that they could say that, that the employer takes them on as third party to protect them from having to pay out the contract of employment.  Now, if you read on the statement of claim that:

The defendant was privately contracted for medical services on the 29th October, 1982; by the plaintiff.

There was no movement through the firm.  It was a private contract and he breached - - -

GAUDRON J:   So, what do you say follows from that?

MS PIEPKORN:   That is right, his duty of care.

GAUDRON J:   Well, what do you say follows from it?

MS PIEPKORN:   The thing is that he - seeing that he prevented me from getting proper medical treatment because of his inability of duty of care to deliver a proper medical section, then he took over the property of my employment contract, that is how he puts it, so therefore he owes me the rest of my wages from the full contract of employment.

TOOHEY J:   But there had already been a judgment in the previous litigation in which it was held that you had suffered no loss by reason of any typographical error that there may have been in the report.

MS PIEPKORN:   The trouble was I had received no medical treatment from the State Medical Section and it was not until 1995 my hand got fitted back into place and I can use it a bit better than I did before.  I received no medical treatment.  I was refused medical treatment.  If I go to a doctor now about the injury, if it slips out a bit now, I still get no treatment.

Now, the trouble is that when I did take the case in 1987 with Justice Matheson into court in October 1987, the Chief Justice was made Solicitor-General in the Attorney-General’s Office at that time and that is when the contract fraud began when the third party was placed in.

TOOHEY J:   Ms Piepkorn, the statement of claim that was struck out and which is the subject of your present application simply alleges a conspiracy on the part of the firm of medical practitioners.  I am not even quite sure with whom, but - - -

MS PIEPKORN:   The conspiracy involved in there is, like I said, with the industrial common law cases where it is made up with the employer and the government.  The employer is protected for no injury against physical assault and for no medical treatment - no proper medical treatment.  Also, the third party - why I asked about this, about Hockley - was because he was also the cause of my being retrenched in 1984.  That was a third party retrenchment. 

Now, that means that the State stated that he has power of attorney over my employment contract which gives him the right to have me dismissed.  Now, if he has been given that power of attorney then I want my group certificate to prove the State’s statement of saying that because all I did when I asked that question of perjury that was given in the comparable verdicts was I could go to the Industrial Court with my limitation rights to contest that dismissal and the courts have always put in that I had no right of my employment contract because of the third party.

So, all I ask for the Court to do with the summons is to sort out the situation that I get my wages paid out from my contract of employment.  When I brought the perjury to the Supreme Court I put it under the Crown law which states that a person who is a non-solicitor can bring a criminal offence before the Bench and it is the Bench’s duty to do the legal action whichever way they go, and all I want to do was prove the perjury so I could go for my employment contract.

Now, the State Supreme Court has always opposed this and when I went into the State Industrial Court about my contract rights I was informed about the third party still having a power over me, that they cannot pay me out.  Then when I went into the Federal Industrial Court which is really the jurisdiction for Caroma Industries, because it belongs to a firm whose main office is in Queensland, I was stated that I could not have it paid out.  They had no jurisdictional rights and also, because of Parliament’s interference into that law, they will not pay me my wages.  That gave the protection again back to my employer.

TOOHEY J:   But your action is not against your employer.

MS PIEPKORN:   No, it is against Perrett & Partners, because apparently every time I went to the Industrial Courts Perrett & Partners opposed me.  I asked them to produce me the group certificate to state that they were my employer.

GAUDRON J:   But they are not your employer.

MS PIEPKORN:   They are not my employer but the State states it.

GAUDRON J:   No.  This is all nonsense, is it not?

MS PIEPKORN:   It is not nonsense.  It is the State’s statement on the grounds that, like, if I made a contract with you that I do a service for you; you agree with me.  I mean, it goes back to the Arbitration and Conciliation Act of the - - -

TOOHEY J:   It does not really, Ms Piepkorn.  I mean, nothing in the litigation that is now before us or, indeed, any of the litigation that you have been involved in previously has anything to do with your employment contract.

MS PIEPKORN:   The thing is with Perrett & Partners - if you understand it, I contracted them for a legal service and in their failure to give me the proper medical explanation of my injury, I have not had the proper medical treatment for my dislocated hand - - -

TOOHEY J:   That had been the subject of an earlier action against one of the doctors in the medical partnership.  Now, what you sought to do by your current claim is, in a way, to go behind that and now sue the partnership.

MS PIEPKORN:   Excuse me, if you look at contracts, a partner - that other partners of that partnership have to always take responsibility for their partner.  Now, he stated - they stated to me when I first brought it to court that the others were not involved, he was by himself.  So, if he has his own practice then he cannot put himself in with the other partnership.  In contract law it states a partner - the other partners are responsible for his mistake.

TOOHEY J:   But I think you are perhaps missing the point of all of this which is that these matters have been before the courts before and, in the first case in which you were involved you received an award of damages.  In the second case it was held that this typographical error, as accepted by the court, produced no loss, and that was in the action against Dr Hockley.  You are now bringing an action against the partnership to which I take it he belonged, and you allege a conspiracy in your statement of claim, the effect of which, I must say, I cannot understand, and that action has been struck out by the court, both by the Master and on appeal to the Full Court.

MS PIEPKORN:   Yes, well, can I explain something to you?  I have a conflict of interest with the politically appointed Chief Justice Doyle.

TOOHEY J:   That has got nothing to do with it, Ms Piepkorn.

MS PIEPKORN:   It has so, because on the grounds that every time I have opposed it - because it is a criminal offence to go into somebody’s contract and put another party.  Now, I have offered the court to do the thing and refer it to the right courts.  Now, I want my contract paid out from my employer because my employer only got - I was only paid out for negligence and I was only paid out for a sprained wrist.  So, the thing is that - and when I was called up, Chief Justice Doyle called me up, and he said, “We’re not on this contract business again” and the judges there, they had to do as they are told in Parliament.  Now, if Parliament - - -

TOOHEY J:   Ms Piepkorn, this is really taking us a long way from your present application.

MS PIEPKORN:   My present application is if Hockley - I mean, Perrett & Partners, through their - accepted their partner’s offence - if they did claim third party rights on my employment contract, then they owe me - - -

TOOHEY J:   They did not claim third party rights.

MS PIEPKORN:   They claimed third party rights and that compelled - - -

TOOHEY J:   Can I just explain to you, which you perhaps already know, that you have 20 minutes and you have a couple of minutes left.

MS PIEPKORN:   Yes, I do.  It says here, on No 2 from Perrett & Partners, it says here it gave out a written admission of a private contract which had an error in it.  Now, that already causes me injury if he makes a mistake - that is a bodily harm charge really because, I mean, if I employ a medical person to do me a service and he fails in his duty of care and then has me operated, which was not even necessary, and then he has cost me the right to go to work, then he is liable for my wages.  He accepted that fact.  Now here, the company doctor, he stated that I had a sprained wrist and I said it was not sprained but when I was sent to all the X-rays they always agreed with the company doctor.  And the biggest catch - this conspiracy situation here was my solicitor, in that common law case with Justice Bollen stated to me - he said, “They want to bring in Workcover”.  So, I was informed that when they pulled off my contract fraud and no medical treatment, they opened up Workcover.

Now, the situation here is if they really want to pull this off, then I am still entitled to my full wages.  Now, I have offered my employer I would return to work.  He refuses to take me, so he broke his contract.

TOOHEY J:   Whatever we are dealing with, Ms Piepkorn, we are certainly not dealing with a situation between you and either your present or any former employer.  It just has nothing to do with this application.

MS PIEPKORN:   No, but Hockley, if you read the first page, it says:

That the defendant discharge themselves from the employment contract between the employee - H. Piepkorn and employer - Caroma Industries Ltd. Industrial Relation Court of South Australia - no. 582/95.

Now, the solicitors acting for Hockley, Perrett & Partners, entered that Industrial Court and stated that they opposed my right to my employment contract with Caroma Industries.  Now, in powers of Parliament it states that they can make me bankrupt.  If I was not employed by Perrett & Partners how come they have a legal right to make me bankrupt, then take it to the Industrial Court and say I had no right to go for my employment contract?

TOOHEY J:   I can only say again that that really has absolutely nothing to do with the proceedings that you brought against the medical partnership.

MS PIEPKORN:   As you say, as the defendant removed the plaintiff’s right to work for the last past 13 years - it was done in 86 - and it finished 25 years of work, they were the ones who did the X-ray mistake.  They cost me my job.  I need my wages.  Now, I have applied - - -

TOOHEY J:   Ms Piepkorn, the time has expired.

MS PIEPKORN:   Yes, all right.  Times up.  You just refuse to do it, you know.  Excuse me, can I just say one thing?  You know Chief Justice King sent me to the Federal Industrial Court - - -

TOOHEY J:   No, I think you have had your allotted time, Ms Piepkorn.  Just sit down for a moment please, will you.

This matter has had a long history involving other litigation.  However, an appeal would enjoy no prospect of success and, accordingly, the application must be refused.

AT 11.47 AM THE MATTER WAS CONCLUDED