Plenty & ANor v Munt

[1988] HCATrans 188

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A31 of 1985

B e t w e e n -

SYDNEY GRAHAM PLENTY and

DEANNE PLENTY

Applicants

and

DAVID CRANSTON MUNT

Respondent

Application for special

leave to appeal

MASON CJ

WILSON J

BRENNAN J

Plenty(6)

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 26 AUGUST 1988, AT 2.32 PM:

Copyright in the High Court of Australia

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MR D. SMITH: If Your Honours please, I appear for the respondent.

(instructed by Aldermans)

MASON CJ:	Yes, Mr Plenty.
MR S.G. PLENTY:	I refer to our application file:ilast week,

Your Honour, in which we are seeking, in paragraph 1,

the inconsistency of section 78 of the

JUDICIARY ACT and Order 69A rule 11 of the

High Court Rule of Australia which is my first

submission, Your Honour.

MASON CJ:  Yes. Your problem there, Mr Plenty, is that

the Court has already, as it were, ruled against

this point in its decision in COLLINS' case.

Are you familiar with that?

MR PLENTY:  Yes, Your Honour, I have a copy of that here

and it would be on that basis, as I said, Your Honour,

that I would perhaps present some distinguishing factors on that in the first instance, if I may.

MASON CJ:  But how can you distinguish n::? The rule was in

virtually identical terms.

MR PLENTY:  I believe, Your Honour, that it would be made

under different circumstances. If I may just,

perhaps, only just take a few minutes, as I said,

in going through some of the distinguishing

factors on it, in the first instance, if I may.

I do not know whether I have given the authorities

on it. We have authorities here, if Your Honours

would accept, on COLLINS' case.

MASON CJ:	They a-e copies of COLLINS' case,are they?
MR PLENTY:	Yes.
MASON CJ:	Yes, if you would hand those up.  I have already

got the volume of the Conmionwealth Law Reports,

so you need not trouble about that. Yes, Mr Plenty.

MR PLENTY:  Our argument on this is that the intent of

the legislators of section 78 was that personal

litigants should be given the right to represent

themselves before this Court, including an

application seeking leave or special leave

to appeal. The COLLINS' case has ruled,

on page 150, under "Held", the first point there:

an applicant for special leave is not a party

withins 78 of the JUDICIARY ACT.

The reason there is given in the second paragraph

in which this is found, at page 151:

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In the ordinary course of litigation,

criminal or civil, it is considered that

a party to proceedings should have the right

to present his own case. But an applicart for

leave or special leave to appeal is not in

the ordinary course of litigation.

We contend that a litigant is a party because,

one,the definition of a party or parties in

Order 1 rule 5 of the High Court Rules includes

the plaintiff and the defendant. At page 3

of the High Court Rules:

"party" and "parties" include as well as

the plaintiff and defendant -

(a) a person not originally a party against

whom a counter-claim is set up or who has

been served with notice to appear under any

of these Rules.

So the principle of what I am saying there is

that a party there is always a party to an action

and is not capable of omission. My second point
is that the application for leave is either the
plaintiff or the defendant. Three, seeking leave
to appeal is a part of the law and the rule
therefore is not something that can be avoided.

Four, so to seek leave or special leave is a part

of litigation, it is something that must be done

in the ordinary lawful course of events within

litigation. It is the party to the litigation

that decides whether to seek the leave or not.

Counsel is only acting under the party's instructions,

it is not the counsel's name that the application

is taken under it, it is the party's name.

It is the parties to the litigation that actually is responsible for the application and,

in fact, there is nothing whatsoever to stop

the party applying from doing his own paper work

or documentation and filing it into the court,

which we have done in this case. Therefore,	there is no reason why the party cannot make
its own application in person to the Full Court.
We say that this rule is inequitable because if
you are going to maintain the rule, and the law must be made to compel solicitors to act, which
at the present time they are not, otherwise there
are no safeeuards for the parties to an action
to be able to put their case before the highest court
in our land and, as such, the course ot justice
is defeated and natural justice and equity are
defeated.

Lord Hewart had it right in 1923 in the

case of REX V SUSSEX JUSTICES EX PARTE McCARTHY,

(1924) 1 KB at page 259. I quote at page 259.

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MASON CJ:  Mr Plenty, it may be possible for us to short cut

this, if I ask Mr Smith a question. Mr Smith,
do you have any material to contest the statement

made in paragraph 8 of the applicant's affidavit,

sworn on 18 August, in which they say:

We have made what we believe, to be all

reasonable endeavours to be legally

represented, however, for reasons outside

of our control, we are unable to achieve

this.

MR SMITH:  Your Honour, the respondent has no material

that could test whether Mr Plenty has made

"reasonable endeavours". The respondent could

only say that Mr Plenty, for a considerable time,

has known of the requirement of the rule and

I have an affidavit which I can place before the

Court showing, in effect, that both Mr and Mrs Plenty

were aware, soon lodging this motion for an

application for special leave, that counsel was

required.

MASON CJ:  Yes. But that really is not the relevant point

at this stage. The real question is whether or

not there is any basis on which their claim in

that they have made "all reasonable endeavours to

be legally represented" but have been "unable

to achieve" legal representation is correct or

otherwise?

MR SMITH:  I could not offer anything to the Court on

that, sir.

MASON CJ:  No. Well, in those circumstances it may be

that the Court should proceed on the footing

that they have not been able to obtain legal

representations and that in those circumstances

they should be permitted to present the case

themselves.

MR SMITH:  Yes. Your Honour, I would not argue against

that. The respondent in particular is hopeful

of some finality in this matter today, and that

would be a way of achieving it.

MASON CJ:  Yes. You would support them being allowed to

represent themselves?

MR SMITH:	I would support the Court, Your Honour.
MASON CJ:	Mr Plenty, in the light of the fact the

respondent supports your application that you

be permitted to present the application to the

Court, and having regard to the material that is

contained in paragraph 8 of your affidavit, sworn

on 18 August, the Court considers that there

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are special circumstances in this case in which
it would be appropriate for us to allow you to

present the application.

MR PLENTY:	Yes, Your Honour.
MASON CJ:	So that you need not direct any further attention

to Order 69A and section 78 of the JUDICIARY ACT.

So that brings you to your special leave application.

MR PLENTY:  Yes. I would refer Your Honours to paragaph 9

of our affidavit of the 18th.

WILSON J:	The one sworn on 18 August?
MR PLENTY:	Yes, Your Honour. What I am, at this stage, asking

for, as I said, is if leave is granted I am seeking

a stay of proceedings at this stage in that I

would now seek the time to be able to - I am not

ready to proceed at this pod:.nt in time. I have

not been able to simply take it for granted

that the leave would be given. We have only come

under grace to seek the situation and I would

be asking for a stay of proceedings in order

that authorities and necessary material could

be placed before the Court.

MASON CJ:  The matter has been placed in the list today,

Mr Plenty, on the footing that it was to proceed.

MR PLENTY:  Well, we did not know that, Your Honour, as I

said, until last week, or had any notification

of this situation and we have placed our predicament

before this Court and we have not been able to

assume that the matter - we are not aware that the

matter was to proceed. : L'f:,we could not do it

ourselves then we were defeated and I have not

been able to address the question of proceeding if authorities have not been placed before the Court.

I think there may be certain other relevant

material that would need to be placed before the

Court and I would seek a stay, at the Court's

discretion, wherever that be required, to attend

anywhere that Your Honours would direct for us

to appear.	I am just not in a position to proceed,
Your Honour.

MASON CJ:	But, Mr Plenty, I would have thought all the relevant materials with respect to the question
whether you ought to be granted special leave
to appeal are in this application book. We have
the judgments of the courts below and normally
we do not go beyond what is contained in the judgments in the courts below in deciding whether
we will grant special leave or no.

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MR PLENTY:  Well, I think, Your Honour, we are perhaps at

the disadvantage, as I said, where we are not
considered to be officers of the Court and therefore,
perhaps in some cases, we would possibly like to

present factual material in limited form to the

Court to demonstrate the facts that would be

necessary.

MASON CJ:  But the relevant findings of fact must be

contained in the judgments of the courts below?

MR PLENTY:  Well, I am just not in a position to proceed

at this stage. We have only come under grace,

as I said, before the Court seeking against the law

the grace of this Court that we could have an

audience before the Court, and I have not presumed

upon that aspect of law in presenting authority

or any basis for the argument itself. I can only

throw myself, once again, on the graces of the

Court in granting a stay of proceedings for us

to be able to prepare for our argument and
presenting the authority and whatever material
we deem the Court would need to have before it

in the presentation of whether leave is to be

given or not, Your Honour.

MASON CJ:  But there has been a very long delay since

judgments were delivered by the Full Court in this

matter. It is now over two years.

MR PLENTY:	Yes, that side of it is not in dispute, of course.
MASON CJ:	The respondent is entitled to some finality

in this matter.

MR PLENTY:  Well, in that regard, Your Honour, I leave myself

in your hands. We are prepared to go to Melbourne

or wherever else, as I said, at the next sitting

if that be, that we can look at the material

and present the case, as we believe that justice
can be done to the facts.	I have just not addressed

the question, as I said, of being able to argue
the matter because of this insurmountable question

of law that we have been confronted with here.

I just have not presumed and take:i it for granted
that I would be able to have audience to do it.

I can only prevail on the Court, in their mercy,

to grant us a stay and wherever they wish us to

attend, whatever the situation be to be able to

present our case in a - - -

WILSON J:  Mr Plenty, you appreciate what the Court is

now concerned with is simply the question as

to whether the matter should attract the grant
of special leave. It would not be for the Court

to proceed,if your application were to succeed

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today, to proceed to the hearing of the appeal.

That would come at some later time. This is simply

a hearing confined to the question as to whether

there is some question of special importance or

something about the case that would warrant the

special leave of the Court. Is not everything

that you would wish to say in support of that

application already in the book. I see you have

included submissions that you made elsewhere to the

Full Court and some lengthy affidavit material.

I just wonder if the material to which you refer

is not already in the book.

MR PLENTY:	I have not addressed myself as to those facts at all, Your Honour, because I have only been able
to take the one hurdle at this particular stage.
It would seem to us to be a monstrous hurdle to whether we were able to do it and I just have not
addressed, as I said, the question of seeking -
looking through - I have only had short notice
that this matter was before the Court at this stage.
There has been pressures of other matters that
we have had to attend in the supreme court in the
last few days; I have just been granted special leave to appear before the Full Court there. Matters have only been just done as brief as we
can to accommodate this situation.  We just have
not been able to cope with going beyond that
point. It is just simply I have not addressed
the argument at all, I can only be perfectly
honest on that.  I do not believe that I can,
intelligently, at this stage, address the arguments
and try to confine them to the proper principles
of what are necessary in seeking leave.
MASON CJ:	I think from previous experiences in this Court

you know what is involved in making an application

for special leave to appeal. You have got to

demonstrate that there is some question of general

principle, a matter of general public importance

in order to secure special leave to appeal.

(Continued on page 8)

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MR PLENTY:	I have not applied for special leave;	those

principles have never been brought home to us

as to what was involved in getting special leave

previously. At this stage I just have not,

as I have said, addressed myself to the file
in this question because I saw the insurmountableness,

perhaps, of the situation of getting leave and

I am just not equipped at this point, as I said,

to know the case or at this stage to know where

to start.

MASON CJ:	It is a very unsatisfactory situation. We have, in effect, granted you a dispensation from the
rule that generally applies in matters of this
kind so that you could present your application and now we find, having granted you this
dispensation, that you are are not prepared
to proceed and that, of course, imposes a very
considerable burden on the respondent who already
has been delayed for over two years in relation
to this matter.
MR PLENTY:	Your Honour, as I have said, that has not been

ever an intention i:n doing that. There has been

every intention, as I said, of trying to

proceed, as I said, in the face of this immense

hurdle of not being able to proceed. As I said,

we have simply addressed the problem of coming

before the Court and -

MASON CJ:	To cut this short, Mr Plenty, you apply	for
an adjournment, do you?

MR PLENTY:	Yes, Your Honour.
MASON CJ:	And for how long do you apply for an adjournment?

MR PLENTY: I. am_ at your discretion, as I said, when you would

like to hear it, Your Honour.

MASON CJ:	I take it that what you are applying for is
an adjournment to a future motion day?

MR PLENTY: Yes, Your Honour. If that be Melbourne, as

I said, or wherever.

MASON CJ:  Yes, very well. We will ascertain what the

respondent's attitude is to this application

for an adjournment.

MR SMITH:	The respondent opposes any adjournment for reasons
that have already been spoken of. This application
was instigated in August 1986. Late last year
there was an application to strike out for want of prosecution because no application book at that
time had been lodged and orders were made, I
think, by Your Honour in that regard. The respondent

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made that concession, slight though it might have

been, earlier, on the basis that there was
perhaps in that a hope of some finality today
and now we hear there is not going to be, or

perhaps not going to be subject to the Court's

decision. So, in a word, the respondent opposes

any adjournment.

MASON CJ:  Do you wish to say anything in response, Mr Plenty?

MR PLENTY:  I do not think there is anything more that I

can add, Your Honour.

MASON CJ:	The Court is of the opinion that this application for an adjournment by the applicant should be refused. There has been a long history of delay in this matter. It is now over two years since the judgment sought to be appealed from was
delivered.  Today the Court granted the applicants
dispensation from compliance with the rule that requires that applications for special leave be presented by counsel and granted that dispensation largely on the basis that counsel for the respondBnt
consented to the dispensation being granted
on the footing that the matter would come on
for hearing and would be finally dealt with today. In those circumstances the Court is of opinion that the application for an adjournment
by the applicants should be refused.

Yes, Mr Plenty. Now, what do you want

to say in support of the application for special

leave - and I should tell you that the members

of the Court have carefully read the papers

in the application book. We are familiar with

the judgments below and we are familiar with the submissions that you made to the courts

below.

MR PLENTY:  As I have said, Your Honour, I am just totally

not equipped at this stage to present argument

on it and I can really only leave myself in

Your Honours' hands in the matter.

MASON CJ:  Very well. We need not trouble you.

MR SMITH: If Your Honour pleases.

MASON CJ:	We have given careful attention to the materials
in the application book. The Court is satisfied
that there is not sufficient doubt attending
the correctness of the decision of the Full Court of the Supreme Court to warrant the grant of
special leave to appeal.  The application for
special leave is therefore refused.

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MR SMITH:	The respondent seeks costs, Your Honour.
MASON CJ:	You cannot oppose an order for costs, can you,
Mr Plenty?

MR PLENTY:	No, Your	Honour.
MASON CJ:	The application is refused with costs.	The Court
will now adjourn sine die.

AT 3.02 PM THE MATTER WAS ADJOURNED SINE DIE

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