Ready v Huey

[1997] HCATrans 87

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B38 of 1996

B e t w e e n -

MATTHEW JOHN READY

Applicant

and

JOHN WILLIAM HUEY

First Respondent

CALLIL HERBERT FARRAH

Second Respondent

Application for special leave to appeal

BRENNAN CJ
DAWSON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 APRIL 1997, AT 11.03 AM

Copyright in the High Court of Australia

MR K.C. FLEMING, QC:   If the Court pleases, I appear with MR R.D. GREEN, for the applicant.  (instructed by Kerin & Co)

MR D.K. BODDICE:   If the Court pleases, I appear for the first respondent.  (instructed by Gilshenan & Luton)

MR FLEMING:   If the Court pleases, may we enumerate the difficulties that we face at the outset. 

BRENNAN CJ:   If you have time.

MR FLEMING:   First, we do not have an important question of law.  Second, we acknowledge that we are seeking leave to appeal against exercises of discretion and, third, there is no great intellectual debate involved in the case.  However ‑ ‑ ‑

GUMMOW J:   Fourthly, has there not been a supervening bankruptcy?  That must have had some effect upon this cause of action, must it not?

MR FLEMING:   I think it was a scheme of arrangement and Mr Ready paid out 100 cents in the dollar to his creditors.

GUMMOW J:   The papers we have just say bankruptcy.

MR FLEMING:   Your Honour, I think that is the correct explanation.

GUMMOW J:   All right.  Anyhow, you have these other problems as well.

MR FLEMING:   Your Honour, we submit that overarching all of those is this simple proposition that Mr Ready is here to try to obtain justice.  The case is about an allegedly crooked policeman who inexplicably was promoted through the system over a period of about 12 years.  Just as inexplicably Mr Ready, against whom nothing was found at any turn, was all but destroyed by the same system.  It is because of that that he was in no position to pursue his proper cause in the District Court.

Your Honours, we say with some confidence that there was an allegedly crooked policeman involved because Sir Harry Gibbs, Sir George Lush and the honourable Mr Michael Helsham in 1989 had a commission of inquiry - at least a parliamentary inquiry into the fitness of certain judges and made a finding, when Mr Huey raised these issues, that Mr Huey was disingenuous.  Perhaps the powers that be did not understand the meaning of the term “disingenuous” but, at any event, he continued to be promoted. 

Our opponents say that Mr Huey and Mr Farrah are prejudiced by the passing of time.  Mr Huey himself raised these allegations in 1989 in a very substantial document, was cross-examined in relation to them over a considerable period of time and, when he did raise them, they became part of a million dollar inquiry into the fitness of Judge Pratt sitting in the District Court.  When Mr Ready raises the issues, he becomes the one who is oppressed.  Our opponents say that when Mr Ready raises the issues that it is oppressive and so he finishes up with a $30,000 or $40,000 legal bill on each occasion.  So Mr Ready at all times has been put, first, on the back foot and, second, into almost bankruptcy during the whole of the 12 or 14 years that have passed.

It is true that he has had the indulgence of the court to proceed with the action, and he sought it a second time.  However, it was only when he sought it for the second time that he was in any position financially to be able to conduct it.  Mr Ready was caught up in a Criminal Justice Commission inquiry.  He was caught up in an inquiry by the Taxation Commissioner, obviously upon information given to them that he was in default of paying taxation, and a very substantial bill was delivered to him.  It was sorted out at the end of the day for a very very small sum indeed.  The inquiry was one into the tow truck industry and Mr Ready was one of the leaders in that industry here in Brisbane.  That went for a considerable period of time and the report in that was not handed down until 1994.

At all of these turns Mr Ready required substantial representation and incurred very significant fees.  So at every turn Mr Ready has been prevented, we would submit, from pursuing his claim for justice.  On the other hand, Mr Huey, who says that he is substantially prejudiced, has had the benefit of the whole machine of State bearing down upon Mr Ready and all but destroyed Mr Ready.

BRENNAN CJ:   Mr Fleming, you have been giving us a lot of information from the Bar table.  What are the points or fact upon which you rely in the application book?  Where do you find them?

MR FLEMING:   In the application book, your Honours?

BRENNAN CJ:   That is right.

MR FLEMING:   The fact that initially her Honour ‑ ‑ ‑

BRENNAN CJ:   Just show us the pages that you rely on.

MR FLEMING:   Her Honour dealt with the issues of impecuniosity and so on at page 4 onwards.  Now, her Honour was not moved by those claims and said that he had not given sufficient reason.  Your Honours, we could only say again that they are sufficient reason for him to be able to now proceed and the only proposition that we can put before you is that this is in fact an important question of justice ‑ ‑ ‑

BRENNAN CJ:   But you have been telling us all these facts without support from the application book.  All this question about ‑ ‑ ‑

MR FLEMING:   They are not in the application book, your Honours, but they are in all of the material that was filed before each of the courts ‑ ‑ ‑

BRENNAN CJ:   That may well be so.  We are asked to decide this on the application book, Mr Fleming, and for my part I am not prepared to come to a decision in a matter on the footing of allegations that are made from the Bar table, which are of a serious nature, affecting the character and conduct of one of the litigants.

MR FLEMING:   Your Honour, they certainly are of a serious character.  All of those materials are within the material that was before the court in each case.

BRENNAN CJ:   As I read these documents, the learned trial judge considered questions of impecuniosity and the effect of delay and exercised a discretion.

MR FLEMING:   Yes, your Honour.

BRENNAN CJ:   Now, looking at that, it is hard for you to say that on the face of that material that discretion miscarried in such a way as ought to justify a grant of special leave to this Court.

MR FLEMING:   Your Honour, we cannot say that it becomes an important question of law in that way.

BRENNAN CJ:   I am not saying an important question of law, I said ‑ ‑ ‑

MR FLEMING:   What we can say, though, it still remains an important issue of justice.

BRENNAN CJ:   That is what you say, but looking at the material that is before us, I do not see it.  I see a consideration of impecuniosity on the one hand; I see a consideration of delays on the other; I see some reference to the past history of the matter.  But, looking at the whole of that, one comes to the view, one would think, that the learned trial judge took the factors to which he refers into account and exercised a judgment which is unattackable under House v The King.

MR FLEMING:   Your Honour, we accept that they are the normal propositions.  However, we come upon the basis of an important question of justice and that is the only basis upon which we can come.

BRENNAN CJ:   But unsupported.  Unsupported except by your assertions.

MR FLEMING:   Your Honour, with respect, there is the material within the judgment setting out the impecuniosity and how it arose.

BRENNAN CJ:   Yes, and that is sufficient for your purposes?

MR FLEMING:   We would submit so, your Honour, if we cannot go beyond that, and I accept that the record does not go beyond that.  It still remains sufficient for our purpose to show that this man was deprived of an opportunity to pursue his case.  We cannot take the matter beyond that, your Honours.  In fact, they are our submissions.  If the Court pleases.

BRENNAN CJ:   We need not trouble you, Mr Boddice.

This case relates to the exercise of a discretionary interlocutory decision by the District Court refusing leave to proceed.  On the face of the reasons for decision, there is no ground for holding that her Honour failed to take account of relevant circumstances or was otherwise in error.  Accordingly the Court of Appeal was right to dismiss the appeal from her Honour’s decision.  Special leave to appeal to this Court is accordingly refused.

MR BODDICE:   If the Court pleases, I ask for an order for costs.

BRENNAN CJ:   What do you say to that, Mr Fleming.

MR FLEMING:   Your Honour, we put some submissions in respect to that at page 6, paragraphs 5.1 and 5.2 of the outline of argument.  We can only say that the applicant has attempted to redress both a public and a private wrong over a long period of time and this is the end of the line for him.  We would submit that he ought not to be penalised in costs again.  They are our submissions.

BRENNAN CJ:   Although the submissions are as Mr Fleming has indicated them, no basis is shown to this Court for the refusal of the order for costs which must ordinarily follow from the refusal of a grant of special leave.  Accordingly special leave is refused with costs.

AT 11.17 AM THE MATTER WAS CONCLUDED