Saeedi v Western Staff Services Pty Ltd and Anor

[2003] HCATrans 465

[2003] HCATrans 465

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S479 of 2002

B e t w e e n -

HABIB SAEEDI

Applicant

and

WESTERN STAFF SERVICES PTY LIMITED

First Respondent

TELSTRA CORPORATION LIMITED

Second Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 NOVEMBER 2003, AT 11.55 AM

Copyright in the High Court of Australia

__________________

MR H. SAEEDI appeared in person. 

MR L.T. GREY:   May it please the Court, I appear for the first respondent.  (instructed by Vardanega Roberts Solicitors)

MR G.M. WATSON, SC:   May it please the Court, I appear with MR B.S. KELLY for the second respondent.  (instructed by Sparke Helmore Solicitors)

McHUGH J:   I understand you are applying to have the matter adjourned?

MR SAEEDI:   Yes, your Honour.

McHUGH J:   I think first of all we should swear the interpreter.

MEHRDAD KHOSHAB, affirmed as interpreter:

McHUGH J:   What are the reasons you seek an adjournment?

MR SAEEDI:   Your Honour, I was prepared to come to the Court and argue my case but unfortunately something out of my control happened.  I went through the procedure of the tumour is going on my left feet and I went to my GP, he refer me to radiology for ultrasound and then they find some tumour is growing.  They refer me for a biopsy and they took sample and refer to pathologist.  The pathologist find something is in there.

McHUGH J:   But how does that affect you?  By the way, Mr Saeedi, I think you have been told that I hold shares in Telstra Corporation Ltd and that nevertheless you have no objection to me sitting on this case?

KIRBY J:   Perhaps that should be translated.

MR SAEEDI:   My objection - I have objection because you have a common interest in Telstra so that could be, I do not know, impartial.  But I have a faith in the High Court Judges because you devote your life for human rights and I am sure that you will not allow that effect on your honour and dignity to some extent ‑ ‑ ‑

McHUGH J:   My shareholding would not be affected by the result of this case, Mr Saeedi.  Do I take it that you have no objection?

MR SAEEDI:   Yes, I do not have objection, your Honour.

McHUGH J:   Yes, all right.  We will just find out what your opponents say because apparently they oppose the application for adjournment, Mr Saeedi.  Yes, Mr Grey.

MR GREY:   Your Honour, we do oppose it, very briefly on two bases:  one, that the documents relied upon by Mr Saeedi do not disclose in what manner it would prevent him from speaking to his submissions, bearing in mind that he has been able to come here today; secondly, on the application for special leave to appeal and the submissions in support of it, there would be little utility, in my respectful submission, in allowing an adjournment.

McHUGH J:   Yes.  Mr Watson, what do you say?

MR WATSON:   We also oppose on the same grounds.

McHUGH J:   Yes.  Mr Saeedi, the opponents say you have not shown any reason why you cannot argue the case, notwithstanding your disabilities.  They say in any event your case is so hopeless that it is a waste of time to adjourn it.  What do you say about that?  As to the second matter, you will say it is not a waste of time and you would say you want to argue it, but what about the first point; why can you not argue it?

MR SAEEDI:   Because right now I am not thinking emotionally, mentally, about my case.  I have this problem and my doctor referred me to a specialist and the specialist taking me on 24^th of this month for operation.  That operation, I do not know, they say it could be cancer that I had before and that it is invasion, the vascular – so I am very pressurised ‑ ‑ ‑

McHUGH J:   I understand.  Mr Saeedi, you have to understand that if your adjournment is granted you would have to pay the costs of the adjournment.  Do you understand that?

MR SAEEDI:   Yes, your Honour.

McHUGH J:   Mr Grey and Mr Watson, the matter is not all that old.  The decision in the Court of Appeal was given in December 2002.  It is understandable that, given the medical condition, the applicant would be more or less beside himself and concentrating on arguing a case in the High Court would not be the first thing that his mind would be directed to.  In those circumstances why should we not grant leave?  I know what you say about the weakness of the case and there may be a problem about recovery of costs, but why should he not in the circumstances be granted leave?

MR GREY:   Your Honour, I do not know if I can add usefully to – the medical evidence, as I have read it only for the first time this morning, does not really provide a direct basis for suggesting that Mr Saeedi, who has been sitting here patiently in Court all morning, could not at least expound some of the reasons.

KIRBY J:   It does say that he has “a growth”.

MR GREY:   It does say that, your Honour, certainly, but one has to extrapolate from that to his inability then to make the argument and I am not sure the medical ‑ ‑ ‑

McHUGH J:   It is not his physical state, it is his mental state.

MR GREY:   I understand that.

McHUGH J:   And it is understandable that someone who gets a report like this is likely to be obsessed with it and the last thing he would be thinking about in his mental condition would be to argue a point in the High Court of Australia.

MR GREY:   If your Honour accepted that, of course, I cannot say any more about it.

McHUGH J:   No.

KIRBY J:   I think it would have to be understood that if the matter is listed again that it will proceed on that day and if Mr Saeedi cannot argue it on that day it will have to be dealt with on the papers, including any supplementary submissions that are filed and exchanged.

MR GREY:   May it please your Honour.

McHUGH J:   Have you anything to add, Mr Watson?

MR WATSON:   Only to endorse Justice Kirby’s remarks.  There is a little history of the case, which was that it was listed before the New South Wales Court of Appeal and it was vacated on the basis of a health problem with Mr Saeedi.  The second hearing date was sought to be vacated but it was not and it went on on that day, so some protection in the nature of Justice Kirby’s remarks we would say would be appropriate.

McHUGH J:   Yes, very well.  Before I give reasons in the matter, Mr Saeedi, you understand that, one, you will have to pay the costs of the adjournment and, two, that the matter will be listed again in the future.  If you are not ready to deal with it on that occasion, we will deal with the matter on the papers you have already filed, together with any other arguments that you put on.  Do you understand that?

MR SAEEDI:   Yes, your Honour.

McHUGH J:   Yes, very well.  In this matter, by reason of the applicant’s health problems, the Court grants an adjournment and emphasises that the application, when relisted, must be heard.   If Mr Saeedi is not fit, the Court will deal with the matter on the papers as filed and any additional submission that, in those circumstances, he files.  The application is granted but Mr Saeedi must pay the costs of today’s application.

The Court will now have to adjourn.

AT 12.06 PM THE MATTER WAS ADJOURNED