Richards v Systema

[1994] HCATrans 378

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'I'

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M97 of 1993

B e t w e e n -

BARRY JAMES RICHARDS

Applicant

and

TYNEKA SYSTEMA

Respondent

Application for special leave

to appeal

MASON CJ DAWSON J GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 JUNE 1994, AT 12.52 PM

Copyright in the High Court of Australia

Richards 1 10/6/94

MR B.J. RICHARDS appeared in person.

MR D.E. CURTAIN, QC:  May it please the Court, I appear with

my learned friend, MR D.F. BEACH, on behalf of the

respondent. (instructed by Herbert Geer & Rundle)

MASON CJ:  Mr Richards, what do you have to say in support of your application?

MR RICHARDS: Apparently, Your Honours, I have to tell you

the special circumstances why I wish to represent

myself. Is that correct?

MASON CJ: Yes, you need to do that.

MR RICHARDS:  As with the county court trial, I did

everything possible to gain representation and it

was purely a matter of funds, and I have done the

same thing with this case. I have attempted to

obtain legal representation through Legal Aid and

every other way and the reason I have no funds is

because I have used them all up on the county court

matter and the supreme court matter.

MASON CJ:  We follow that. Now, you need to apply for an

extension of time because your application is out

of time. Do you have anything to say on that?

MR RICHARDS:  I have, Your Honour, but I am about to go

blank. On all occasions, Your Honour, I was in the

hands of solicitors who I was paying for services

and I took their advice on all occasions. This

partly went back to a firm of solicitors, Phillips

Fox and Masel and a John Snowden.

I was unfortunate enough to have had two lots

of personal injuries. The first one is at the hand

of Allendale Private Hospital and the second one

was in a motor vehicle accident in 1982.

Mr Snowden never ever told me of the individual

injuries. When it went to court in 1988 before the

supreme court, I was of the belief that the

substandard bed that Allendale Hospital supplied to

me caused damage to my LSSl disc.

It took 13 years to go to trial, that one, and

when I answered interrogatories - that trial was

virtually brought to an end without my permission,

the one before Justice Ormiston in 1988. I had an

agreement with my legal team that a certain amount

would be sought and if that was not forthcoming, it

would go to a decision of the jury. During the

trial, the barrister, the senior barrister,

Mr Ross Gillies, turned around to the jury and

says, "And if you were to give Mr Richards 50,000

it would be a lot of money". I nearly passed out

Richards 2 10/6/94

when he said that because the figure we had

discussed in his office was enormous compared to

that.

I tried to appeal shortly after that for that

case and was told there was no appeal. I then took

the motor vehicle accident, which Mr Snowden had,
of Phillips Fox and Masel, off of him because of

the failure of that case and went to a new firm of

solicitors, Godfrey Stewart in Seddon, which is a

suburb on the other side of town here in Melbourne.

At that stage I did not know that I had received

severe damage to my sacrosciatic ligaments in the

Allendale Hospital bed, and spinal ligament damage beside deep vein - I knew I received the deep vein

thrombosis damage.

When I took the file off Mr Snowden and handed

it over to Mr Jovetic, by that time he apparently

was aware of all the different injuries I had

including neurological damage which I did not know

I had.	I am sorry, Your Honour, I am completely
confused.

MASON CJ:	I gather what you say is that as a result of these disabilities you were, as it were, unable to
comply with the requirements of the rules in
relation to filing your special leave application in time?
MR RICHARDS:	That is right but what it appears is the

solicitors and barristers got it all wrong. They

thought the LSSl came out of the Allendale
Hospital badly sagged bed with a ridge laying
across it that I was lying on that.was poking into

the mattress. They put all their judgment on that.

The experts were telling them that I had no LSSl

damage after I left Allendale Hospital. I do not

know whether they told them that I had sacrosciatic

ligament damage or spinal ligament damage, but they

were certainly telling them that the circumstances I described in the Allendale Hospital bed could not	do damage to my LSSl disc.	It was virtually
negative load.

MASON CJ: Yes, but I do not think there is much point in

going into all that detail, Mr Richards.

MR RICHARDS:  The point is they seemed to have formed

different camps and they virtually - Mr Jovetic - I

do not know how much I spent with him - about

30,000 or 40,000 - but I was not getting any

information off him - - -

MASON CJ: Yes. But if you would just listen to me. I do

not really think there is much point in our going

into all that detail. I think at this stage it

Richards 10/6/94

would be better if you proceeded to try and explain

to us why there is an important question of

principle involved in this case or why your

application raises a question of special or public

importance because, as you have probably been told,

you need to establish not merely that the decision

of the court below was wrong or arguably wrong but

you have to establish that there is a point of

special principle, a point of public importance,

before this Court will grant special leave to

appeal.

MR RICHARDS:  Yes, Your Honours. I did want to go through

the application book, page by page, but - - -

MASON CJ:	I do not think there is any necessity to do that.
MR RICHARDS:	Okay.
MASON CJ:	You will bear in mind that there is a time limit

in these applications, and we have read the

application book.

MR RICHARDS:  Yes. Well, Your Honours, His Honour

Judge Spence did not define to the jury my loss of

earning capacity. I had put to the jury two

examples: one was that any time I was able to work

I could double my money and the other example was

that in mid-1974/1975, before the first lot of

personal injuries, I had doubled my money and made
between 65,000 and 70,000 then and that I was

looking forward to a successful future until that

first lot came along.

It needs for you to know this:  I started back

in 1980 but I had not really completely healed. I

really only had a range of about 18 inches off the

floor to overhead but I did not know that, and I

started tiling a floor over a period of three days

and brought back the lower buttock damage that came

out of Allandale Hospital. So, what has been stated in this book is not

quite correct. It was not until 1981 that I

realized I had a comfortable working range of

18 inches off the floor to overhead and I decided

that I was going to stick to that range for

evermore and I had my son becoming my apprentice

within about a year. So, I built this very large

approximately 30 square house and virtually did all

my own work myself - most of the work - sticking to

that range, and I gave the jury and His Honour the

example that I doubled my money there - this was

between 1981 and 1982 - and I gave them the figures

of that proving it.

Richards 10/6/94

In so far as the loss of earning capacity,

His Honour did not define that to the jury - did not give that example to the jury.

GAUDRON J: But you had given the example to the jury.

MR RICHARDS: 

Yes, but His Honour gave to the jury a very,

very - an example that created in the minds of the
jury which I believe, by the amount they awarded,

they accepted.  I cannot recall which page it is

but I know His Honour gave figures to the effect of

about $13,000 or thereabouts.  He gave an example.

He did not give my example to the jury. On the

other hand, he could have put it this way,

"Mr Richards has said that he can earn anything

between 65,000 and 80,000 - that is his evidence -

any time he is able to work, and if you multiply

that by the number of years here today, we own him at least 800,000, plus pain and suffering and loss of enjoyment of life", and those things.

I was of the belief then that you only got

compensated up until the time it went to court.

That is also another factor that no one ever told

me. They gave me completely incorrect information

and did not tell me correct information. I was

also told that the County Court can hand down any

amounts of money by the same person who told me

that it was 70,000 to run the trial and it only

cost six, and I was willing to offer him my title

to my house and he still deserted me before the

trial after taking about 30,000-40,000.

I say that His Honour should have given my

example; should have given both my examples. In

fact, I say not only a 10-year example, like I

thought, which was roughly it at the time, I say

His Honour should have given it right into the

future, multiplied between 65 and 80, plus

increases by 35 years as I now believe it to be

which would have been an astronomical amount of

money, and that is the way it would be. I had

definite plans to go into multi-units again with my

son. I have built two-storey flats, multi-units

all over Melbourne and whilst I was crippled. From

mid-1974 to mid-1975, when I built my first

two-storey, from then onwards why my tax returns

are so poor was because I was totally

incapacitated. Those amounts of money that I was
earning was on one leg, could not bend over, could

not sit. When I recovered to the proper range in

1980 and flared it up because I did not stick to

the range, just as I finished off my house - I

previously had about five of them - the car
accident finished me off and stopped my progress

then.

Richards 10/6/94

Now, that was given clearly during the

evidence, I believe, and His Honour could have or should have, I believe, given that example to the

jury rather than the very small figures that I
believe created in the jury's mind the small

amount and I think that they were influenced by

that.

There are some authorities in there that I

refer to in so far as loss of earning capacity goes

but -

MASON CJ: But your complaint that the trial judge did not

put that particular example to the jury is not

really a complaint that raises any question of

principle. I mean, what you are complaining is

that the trial judge failed to direct the jury on a

particular matter of fact.

MR RICHARDS:  To properly direct the jury on the evidence.

On the evidence and a number of other facts too

which I wish to -

MASON CJ: Maybe, but that falls short of raising a question

of principle.

MR RICHARDS: Well, I have some authorities on it that

suggest that it has been decided on before, loss of

earning capacity. The authorities support that.

MASON CJ: Yes.

MR RICHARDS:  Do you want me to read those, the authorities

in - - -?

MASON CJ:  It is a matter for you to decide what you want to

put to the Court, Mr Richards, but I have raised

with you the question whether or not the matter you

complain of is a question of principle or whether

it is just a matter of fact.

MR RICHARDS:  I have having trouble seeing, to tell you the

truth, Your Honour.

The compensation for injury in this case

must cover loss -

this is Robinson (Grafton) v Carter, page - I think

it is 657.

MASON CJ: Yes. Well, we know the case.

MR RICHARDS: Well:

The compensation for injury in this case

must cover loss of earning capacity, necessary

Richards 6 10/6/94

recurrent expenditures flowing from the

injuries and loss of the amenities of life.

I should like to say something about each

of these. The respondent is not to be

compensated for loss of earnings but for loss

of earning capacity. However much the

valuation of the loss of earning capacity involves the consideration of what moneys

could have been produced by the exercise of

the respondent's former earning capacity, it
is the loss of that capacity, and not the

failure to receive wages for the future, which

is to be the subject of fair compensation. In

so saying, I realize that many statements may

be found in the reported cases where loss of

earnings has been the description of this

element in special damages. But I do not find

that in these it was necessary to consider or

draw the distinction between the loss of

earnings and the loss of earning capacity.

MASON CJ: But the trial judge did tell the jury that they

were to award you compensation for loss of earning

capacity.

MR RICHARDS:  He gave an example but it was not the example

that I gave in evidence.

MASON CJ:	No, but the jury had in mind the example that you had given in evidence and in your address to the
jury.

MR RICHARDS: Yes, but I would, Your Honour, introduce that

under the lack of direction. I believe that I am

entitled, going by Mcvicker v Forbes, to have

proper direction and I say that the lack of

direction in many other components of the charge is

what I am here for.

MASON CJ: Yes, but what I have said to you is that you are

complaining about his failure to give a direction

on a particular matter of fact.

MR RICHARDS: Well, I am saying that His Honour did not put

my case to the minds of the jury as the evidence

unfolded during the case. That is what I am

certainly saying, and not only on that point but on

a number of other points. I am saying that the

example he gave had an effect on the jury and that

was evidenced by the amount they brought back which

was no comparison to the injuries and losses. You

have only got to look back at all trials to realize

that.

I received massive spinal and neurological

damages, and a hip damage. I have had a spinal

Richards 7 10/6/94

fusion because of it. It would not even cover the

pain and suffering of some of these authorities I

read from here, let alone the loss of income

component. I am at my best now, deteriorating all

the time. But I am getting away from the point.

The point is that I - I am still finding it hard to

read the writing:

Emphasis should be placed upon what is to be

the subject of compensation, namely the loss

of earning capacity and upon the many factors

which may have influenced its effective use in

the future as well, of course, as upon the
likelihood, if it be evidenced ..... in the

future.

Now, I am saying that I gave that to the jury

but the example His Honour gave cancelled that out; did me harm. He should have given the alternative.

If His Honour wanted to give an example like that,

he should have at least given my example, the

extreme, and multiplied it by the number of years.

I am saying that that had an effect on the jury.	I
am saying that influenced the jury.	I am saying

the 19,000-odd, 500, whatever it was, is absolutely

perverse and trivial, to say the least. It bears

no comparison with the injuries and losses. That

is not only with mine, that is with - - -

GAUDRON J: But was not one of the difficulties this, that

the injuries and losses had to be ascribed to

particular incidents? There was some complication

about the earlier disabilities and - - -

MR RICHARDS:  No, there was not. That was only in the

minds - the evidence, the expert - my evidence, the

physical factual evidence and the expert evidence.

Mr Mills - - -

GAUDRON J: There was evidence also from the defendant on

this.

MR RICHARDS:  The defendant?

GAUDRON J: Yes, there was other evidence, was there not?

MR RICHARDS:  No. The defendants did not call their expert

witness. They had me examined by experts but they

did not call them for reasons best beknown to

themselves. His Honour did put an opinion in on

that but I am not guessing. I mean, I could guess

but - well, I think His Honour said they believed

it would not be an advantage to their cause. But,

Mr Mills, when asked a question - it was Mr Scanlon who introduced the 1988 court case. The 1988 court

case was introduced by Mr Scanlon and he said to

Mr Mills, my expert orthopaedic surgeon who did the

Richards 10/6/94

spinal fusion on me, "Mr Mills, would you be
surprised to hear that Mr Richards claimed a back

injury in the 1988 trial before Judge Ormiston?"

He said, "Yes, I would be surprised.", because I
was getting around telling everybody that I had a

LSSl damaged disc ever since Allandale Hospital -

slightly before actually - but it was not it.

I had mild overuse injury of the spinal

ligaments which settled down before I went into

Allandale Hospital, and then I received severe

sacrosciatic ligament damages in the Allandale

Hospital, and spinal ligament damage, which I was

getting around telling everybody was LSSl disc

damage, which was not, and all the experts were

confirming it and because soft tissue injuries do

not show out a scar on X-ray until some time later,

I do not know when they diagnosed the sacrosciatic.

There is no doubt where the LSSl injury came

from. It came as a hyper-extension injury out of the 1982 car accident.	You have only got to look
at the X-ray.	The disc space on the abdominal side

is 6 millimetres and posteriorly the body of the

vertebrae is resting on the sacrum, the bone to

bone, indicating a hyper-extension injury

over ••.•• ! have got three crushed discs in my neck.

I have had a MRI scan since. Now, John Macarthur

who is a very experienced surgeon diagnosed

clinically after the car accident that I had a - he

believed I had a collapsed disc which needs

operative orthopaedic intervention. Now, he

repeated that in the courtroom. And I have, I have got a collapsed 2/3 and I have got the 5/6 pressing on the cord out of that car accident.

All these legal people I have had have brushed over it and they have taken certain sides and,

unfortunately, I have got with ones who have been

influenced, I believe, by the insurer and its

servants and agents. The facts are that I have

proved conclusively with the orthopaedics and

biomechanics of it where the injuries came from and

that was testified to by the experts in the

courtroom. Mr Mills said, yes, I did not have an

LSSl damaged disc and he confirmed it in his rooms

and why I got confused with Mr Macarthur is because

I had not been told by Don Jovetic then, the one

who asked for the 70,000, that I had all these

separate injuries. I learnt in 1989 after the

fusion that I had three separate injuries.

There is no doubt now where all these injuries

came from. I can prove them conclusively if I was

allowed here today, and I intended to, expecting to

go back to the supreme court. But there is no

doubt where the hip injury came from, if that is

Richards 10/6/94

what they are calling it. I have torn the

iliofemoral ligament which runs to the hip and from

the ilium. It was abducted by the brake. My foot

skidded off the brake, hit the floor and as I

swerved to miss the people the brake abducted my

thigh at the mid-calf and tore the ligament.

Because I previously had deep vein thrombosis I thought that had reoccurred and I had stretched an

old thrombose vein.

MASON CJ: Mr Richards, your time has expired. So, you

should bring your oral argument to an end.

MR RICHARDS:  Your Honour, there is a mass amount of it, and

the authorities to go.

MASON CJ: That may be so but the point is that applications

of this kind are to be presented within a time

limit of 20 minutes. That is the rule that applies

to all applications for special leave to appeal.

MR RICHARDS:  Well, what would happen if you have got

further overwhelming evidence that would entitle me

to a rehearing?

MASON CJ: But, you see, that is the point. You are

supposed to be able to demonstrate within

20 minutes whether or not your case involves a

question of general principle or question of public

importance. This Court is not hearing an appeal in

your case.

MR RICHARDS: Yes, Your Honour. Well, there is a lot more

here to hear.

MASON CJ: Well, I must say to you that notwithstanding

that, you must bring your oral submission to an end

because the 20-minute period has expired.

MR RICHARDS: Well, I have no choice, do I, Your Honour?

MASON CJ: No, you have not. Yes, you can resume your seat,

Mr Richards.	The Court need not trouble you,
Mr Curtain.

The Court has read all the papers in the

application book and has given careful attention to

the arguments that have been presented by

Mr Richards in support of his application but the

Court - - -

MR RICHARDS:  Your Honours, with respect, I have not - I

have put 10 per cent of my case.

MASON CJ: Yes, I realize that.

Richards 10 10/6/94

MR RICHARDS:  I thought I said to the Registrar I needed two

or three hours.

MASON CJ: Yes, but the Registrar should have told you that

an application is to be presented within 20

minutes.

We have given careful attention to the

arguments that have been presented in the time

limited for the presentation of special leave
applications but we are not persuaded that the

application raises any question of general

principle and it is therefore not appropriate for

the grant of special leave.

In the circumstances, because the application

is out of time, the appropriate order to make is

that the application - - -

MR RICHARDS:  Your Honours, it is not out of time because of

my fault. It is out of time because of barristers

who took all my money and did not do it correctly.

Why should I suffer because of that?

MASON CJ: 

The appropriate order is the application for

extension of time is refused on the ground that the
case is not an appropriate case for the grant of
special leave. The application is therefore
refused.

MR CURTAIN: 

May it please the Court, we seek costs on

behalf of the respondent.

MASON CJ:  Mr Richards, what do you say about that?

MR RICHARDS: Costs?

MASON CJ: Yes.

MR RICHARDS: Well, they will just have to submit their

costs. I am on an invalid pension and they will

have to be paid off.

MASON CJ: Very well, the application is refused with costs.

The Court will now adjourn sine die.

AT 1.20 PM THE MATTER WAS ADJOURNED SINE DIE

Richards 11 10/6/94