Semini v Masel and Ors t-as Aquarium City

[1997] HCATrans 363

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P3 of 1997

B e t w e e n -

PHILIP VICTOR SEMINI

Applicant

and

TONY MASEL, LANCE MASEL and STEVEN ALICK MASEL trading as AQUARIUM CITY

Respondents

Application for special leave to appeal

BRENNAN J
TOOHEY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON MONDAY, 8 DECEMBER 1997, AT 4.22 PM

Copyright in the High Court of Australia

MR P.V. SEMINI appeared in person.

MR D.M.G. BURTON: If it please the Court, I appear for the respondent.  (instructed by Phillips Fox)

BRENNAN CJ:   Yes, Mr Semini.

MR SEMINI:   May it please the Court, my name is Semini, and due to financial reasons I am unable to be represented here today.  If your Honours care to peruse the file you will note that the filing fee for this application was accordingly waived.  Your Honours, I am not a vexatious litigant but I have nowhere else to go; this Court is my final avenue of justice.  I am going to endeavour to illustrate the consistent misapplication of discretion, not in terms so much of fact alleged to facts proven but rather in terms of fact found to the decision made. 

What is my assertion, your Honours, is that throughout the judgment of his Honour Justice O’Sullivan in the District Court he finds critical facts in my favour, discernible, discrete, objective, crucial facts that support the diagnosis of sympathetic dystrophy and all the things that flow from that.  However, having once found all of those things in the application of the logical reasoning of those facts to a decision, there is a gross travesty of justice.  What happens is his Honour moves from the realm of fact to that of fiction, and what we see is a misapplication of justice that is detrimental to more than just myself.  Who it affects is the class of persons, such as myself, who now receive - upwards of 5,000 of us in Australia - the spinal cord stimulation, a very invasive procedure in the spine, and which his Honour found was required due to the permanent, serious, physical and psychiatric disablement of myself, which is throughout the judgment. 

Having once found all of that, having once found on the evidence of four specialists that the symptoms from which I suffer will not abate, will be there for the rest of my life, at least in a significant proportion, and are otherwise incurable, then found that there was only a 25 per cent requirement for the spinal cord stimulation and the associated medications to go with that.  So my argument is this:  that, in essence, when his Honour turned his mind to the crucial elements from what I suffer as an injured plaintiff the evidence was my way.  He found it on the “issue by issue basis”, to use his Honour’s words.  Irrespective of the credibility findings, he said, “I find as fact - blah, blah” - all in my favour. 

Then in the application of his determination - the court’s own findings of fact to that of the reasoning, to that of the logical conclusions as to what would flow from those findings of fact - we then traverse the circumstances.  I note, your Honours, that what I am challenging is the proper inference to be drawn from facts clearly ascertained, so far as they are relevant to the decision pronounced, with the rider being as distinct from those findings of fact, based upon the demeanour and the credibility of the witness, which I assert simply did not happen, as his Honour clearly states.  He addressed ‑ ‑ ‑

TOOHEY J:   Mr Semini, the matter went on appeal to the Full Court which increased the amount of damages by something just under $40,000, is that right.

MR SEMINI:   Yes, your Honour, yes.

TOOHEY J:   But not, as I understand, in relation to future medical expenses?

MR SEMINI:   No, your Honour, so what the Full Court did ‑ ‑ ‑

TOOHEY J:   That is the aspect, is it, of the judgment below that you are questioning?

MR SEMINI:   Exactly, your Honour.  It is the sole discrete application of the sum for future medical allowances.  You see, your Honours, the matrix of one’s pain and suffering, the future economic loss and the future need for medical is an inextricably linked matrix.  In other words, if one cannot do any work because you suffer from, to use the words “intractable pain”, then your future economic loss correspondingly and applying logical reasoning increases.

However, if your future economic loss has been set at a figure based on the fact which his Honour was open to find, and did find, and with which I agree and I concur in the Full Court adjusted, then the future economic loss component and the other components necessarily need to adjust.  It is like a ball of clay.  If you push it in a corner it is going to splurge out and that is exactly what has happened.  What has happened is, and when the Full Court adjusted the future economic loss provisions applicable to myself, they increased them asserting, in essence, that the devaluation in economic notional units to myself was significant and, in their words, the words of Justice Ipp with which the other two justices agreed, I suffered permanent physical and psychiatric disablement.

So that the Full Court found that wanting and found the discretion erred by his Honour Justice O’Sullivan to be in error enough to increase it by around half, the term of the future economic loss.  However, what the Full Court did not do is similarly apply that reasoning that allowed them to say, “All right, this chap is going to have more future economic loss because he is more disabled than the District Court judge otherwise allowed in the provisions”.  They did not allow for the future medicals to be in parity with that. 

The other argument is, your Honours, that even if that minimalist adjustment to the future medical allowances had occurred, even that was not sufficient on the evidence and on the findings of his Honour.  That is the most critical point to my argument, your Honours.

His Honour Justice O’Sullivan found, as fact, serious permanent, intractable pain - not going away, unable to be resolved.  The only treatment that worked was a spinal cord stimulator.  A myriad of other treatments had been applied, failed.  The only thing known to medical science in the words of Dr Salmon, the specialist with whom his Honour absolutely concurred.  Having found all of these inextricable facts, the application of discretion was just obfuscatory, in my submission, and a tangent in which I cannot reconcile with logic.

What my argument is is that, well beyond myself, what the courts of Australia need is some general guidance as to the application of discretion in such circumstances, even in a particular case here, where medical evidence on a specific nature of which a value judgment would be very hard to form because the matters - as it appears in the judgment, the syndrome from which I suffer occurs in less than one per cent of all the people who suffer a nerve injury - less than one per cent.  It is specific.

However, 5,000 of the units that are supplied to me every year are inserted Australia-wide, so it is a general application as well.  So, out of the one per cent of the people who have a nerve injury, who suffer these problems, fall into my category.  His Honour, then, was forced to rely, appropriately, on expert witnesses, of which the four called, uncontested, all said the same thing, and with which his Honour concurred - found as fact all of those things.  However, his Honour then took it upon himself to quote the words of Justice Ipp in his own opinion, and I will just get that bit for you.  I will locate that section.  He says, at page 82 of the application book, your Honours, line 5, where Justice Ipp, referring to the regard with which his Honour Mr Justice O’Sullivan had had to the case, he says”

His own opinion would be -

in essence -

that it would be reasonable to proceed on the basis that there is a 25 per cent chance of an ongoing need for the epidural stimulator and to take Prozac -

Your Honours, that is in complete contrast with his Honour’s own findings, those of the court, those that were applied by the Full Court when hearing the appeal on the issues of future economic loss.  The views of that - in other words - - -

BRENNAN CJ:   Why do you say that, Mr Semini?  I see that passage there at page 82 which you draw our attention to.  Now, what is the passage of the judgment with which you say that part on page 82 is inconsistent?

MR SEMINI:   Right, yes, your Honour.  It starts on page 35 of the application book, at line 23, in which, under the heading of “Pain, suffering and loss of amenities”, which again is inextricably linked, it explains the symptoms with which I suffer, the effect upon my life, and therefore is my argument, on logical reasoning, inextricably linked to the future medical issues, his Honour Justice O’Sullivan, says, at 23:

Despite the nature of the plaintiff’s personality and what I find to be some tendency to exaggeration -

however, he found in my favour on all the points -

I am satisfied that he has incurred great pain and discomfort as a result of his injury -

“great pain” and he says:

Fortunately, he is now able to exercise some control over his pain but that has mainly been since the implantation of an epidural stimulator and even now he has been left with residual symptoms.  The stimulator has not resulted to any improvement in the hand -

and that is the point, your Honours.

BRENNAN CJ:   I understand that.  What I am not following is this:  your argument is, as I understand it, that the Full Court increased your damages on one basis and, if they had carried that basis through to future medical expenses, they should have increased your future medical expenses also.

MR SEMINI:   Yes.

BRENNAN CJ:   Now, what is the passage in which they dealt with the future economic loss which ought to have been carried through to future medicals, but was not carried through to future medicals.

MR SEMINI:   Yes.  Well, your Honour, part of it is contained on page 75 of the application book, at line 16, and what I am saying is - and I have an authority here in my notes that it is not the specific section of the judgment that might say X is X, it is the generality of the judgment, and what clearly comes through from the judgment of his Honour Justice Walsh, is that I have suffered great pain, and at line 16 on page 75, where he says:

Notwithstanding the fact that his Honour found that the appellant had some tendency to exaggerate he further found that the appellant suffered great pain and discomfort -

and said that:

left with permanent significant residual disabilities.

Although, in that context, your Honour the Chief Justice, he was considering, I think - well, it is after special damages, but they were agreed at line 4, so I assume that what he was considering then was the preamble to the pain and suffering assessment, which precedes on the bottom there. And on page 76, at line 5, Justice Walsh talks about:

It should be acknowledged that the appellant continues to suffer.

And at line 7, 8:

These are of considerable significance and have affected his every day life.

And those are significant.  They are not trivial, incidental, tangential findings, they are inextricably linked.  I will just try and find the exact passage where his Honour, he says, at page 79:

Whilst I am satisfied that the award for past economic loss has not been demonstrated to be erroneous, I have reached the conclusion that, particularly having regard to the young age of the appellant and the limitations of the avenues of employment now open to him, the award for future economic loss is so erroneous as to justify interference.

And the words there, your Honours, that are critical, I say, is “regard to the young age of the appellant and the limitations of the avenues of employment now open to him”.  Now, as Dr Salmon, and as the other doctor said, and his Honour chose not to find, I could do sedentary employment.  There are things that I could do, so that when his Honour cast his thoughts to what would limit my employment capacity, what must have been in his mind was, as he calls it, permanent significant physical and psychiatric impairment.  Those are the things in which he considered to be crucial. 

However, he allowed somehow, the matrix of the pain and the symptoms, and the causes, and the economic loss, to have been separated and that is why, your Honours, the appeal is brought purely on a discrete point of future medical allowances, which is corroborated by an increase in the future economic loss on the grounds that the limitations on my employment capacity which are not, I mean it is not like I have got a broken spine or something, they exist.  They are there.  They do have an effect, an effect big enough for his Honour Justice Walsh to increase from, I think, $62,000 to $100,000 the future economic loss provision, which is about a half, which shows a significant increase, in my view, and one that should have flowed on from the consideration of the future medicals.

If I turn to the issue of the future medicals, I note that his Honour Justice Walsh starts discussing the issue on page 81 of the application book at line 25 when he talks about my contention, that they are inadequate, the future medicals:

To the continuing need for medications, consultations with Doctors and the costs of obtaining, maintaining, replacing and inserting the epidural stimulator.

Which is in my spine, in which I refer to previously his Honour’s comments that it is a “permanent epidural stimulation”.  It is not something that one can whip in and whip out.  It is not like taking a disprin tablet, this thing is in there, it is in the spine, it is a last resort medical treatment.  There is little else I can do other than resort to this treatment.  It does not cure the problem.

So, when his Honour casts his mind to these issues, important issues, that the discretion with which he should have applied in logical reasoning sense the facts as found by him, on reading his Honour’s judgment about the significant, permanent disablement; the fact there is no cure; always have some symptoms; the level of symptoms unknown, however, based on psychiatric evidence, so long as there is pain there will always be the psychiatric problems; when that matrix is established, when the Full Court then increases future economic loss to account for such a matrix and does not correspondingly allow for the future medicals to enable one, as myself, to be able to function, that that is a consistent misapplication of discretion.

BRENNAN CJ:   But, is not the problem this, from your point of view, that Justice Walsh says that the prospect of your future employment was not sufficiently regarded as dismal by the trial judge to reflect the amount of damages that should have been awarded to you, therefore damages should be increased.  It is one thing to talk about employment prospects; it is another thing to speak about your need for continuance of the epidural stimulator and the taking of the expensive medications that he listed.

MR SEMINI:   So, is what I understand your Honour suggesting, that it is a case of a concurrent finding?

BRENNAN CJ:   No, I am not suggesting that.  What I am suggesting is that there are two questions: one is, for how long will you have to spend money on the stimulator and medication?  The other is, for how long are you likely to be prejudiced in employment?  The answers to those two questions are not necessarily the same.

MR SEMINI:   What I would say is that although they are moving in the same direction, if you like, they are not on exactly the same point, but what they do show is an inextricable link.  In other words, when his Honour Justice O’Sullivan says permanent disablement; relies on the four specialists, the only people who were called to give evidence; finds the matrix; finds the pain; the significant psychiatric symptoms; two disorders:  major depression disorder, major anxiety disorder and, as this Court would appreciate, in the assessment of aftermath and nervous shock considerations, they are not mild, trivial, flippant ‑ ‑ ‑

BRENNAN CJ:   No, I do no think there is any question of that arising at all.

MR SEMINI:   No.  You see, your Honour ‑ ‑ ‑

BRENNAN CJ:   The question really is whether the link between the two is as close as you are arguing it to be.  You see, if it is open to the Appeal Court, that is the Full Court of the Supreme Court of Western Australia, to say, “Well, we are not satisfied that the link is completely as close as the applicant would have it,” then I am afraid the prospects of special leave to appeal to this Court are fairly dim, Mr Semini.

MR SEMINI:   Yes.  You see, your Honours, the issue of the special leave which I seek is not so much - although it reflects - obviously it has to reflect my own case, and that is where I get, if you like, the access to bring the

application - what it arises out of is the consistent misapplication of discretion.  Proving that, of course, and proving, I suppose, some need for the Court, I hope, to issue some broad guidelines - not rules of law, but some broad guidelines, policy considerations similar to, I note, the admissibility of evidence obtained through improper means, in which the court says, “You should not do that, we will not admit it, because on policy considerations it lowers the integrity of the courts.” 

What I assert, your Honours, is that in a similar fashion the misapplication consistently of discretion similarly demeans the court process and lowers the integrity of the courts, that damages the system of justice itself inextricably.  I say that as my case being merely one of a myriad of examples in which the discretion has been misapplied.  You see, when a judge finds as fact all the problems in which he found with me, finds that they are not going to go away, finds that the only treatment is the dorsal column stimulation and then seeks to remove it, in which the value judgments of a judge, with the greatest of respect, would be curtailed in a situation in which the evidence is so specific, the expert evidence is unique, it is on point, there is really little room to make a value judgment other than on credibility and those things which the court holds dear. 

On the issues of the pain, the treatment regime, the expectancy, all those things, your Honours, I just do not see how they are open to a judge to find, when the expert evidence conclusively, without variation, says, “permanent, so serious, significant, unrelenting”, you know, “psychiatric and physical impairment”, when that is the case, it is that clear and the matrix is destabilised, it is separated by the will of the sole opinion of a judge, a value judgment.  With the greatest of respect to the Bench, I just cannot see how, when the evidence is so overwhelming, that a travesty is not created.

BRENNAN CJ:   Thank you, Mr Semini.

MR SEMINI:   Thank you, your Honours.

BRENNAN CJ:   Mr Burton.

MR BURTON:   May it please the Court.  It is the respondent’s submission, your Honours, that the case should be refused, the application for leave on three grounds.  The first, that the proposed appeal raises questions of fact and discretion but no fundamental question of law, of general application or public importance.  The second ground is that the decision of the court below was not attended with sufficient doubt as to require the intervention of the Court, and the third is that the case is not a suitable vehicle for the determination of a question of principle.

As to the first ground, as previously stated, this whole case turned around issues of fact, issues of the plaintiff’s credibility and issues of the trial judge and intermediary court’s discretion.  With regard to issues ‑ ‑ ‑

TOOHEY J:   I do not really understand what you mean by “discretion”, Mr Burton?  I mean, evaluation, yes and, in the context of future medical expenses, the trial judge proceeded, having looked at various expenses that would be incurred or were likely to be incurred, actually made an assessment for 25 per cent prospect of an ongoing need for the epidural stimulator.  Now that is a process of evaluation which Mr Semini would challenge but I do not understand how it is said to be a matter of discretion.  I mean, once the judge has made his findings of fact he then had to make an assessment based upon the evidence as he had found it.

MR BURTON:   Yes, your Honour.  What I meant by discretion was the second ground of appeal.  There are two heads of a proposed appeal, one is the determination as to the award of future medical expenses which is an evaluation of the determination of the question of fact.  The second issue is the appeal against the Full Court’s decision to grant only 50 per cent costs which is the exercise of discretion.  There I am referring to the term “discretion” with regard to the costs awarded, your Honour.

TOOHEY J:   Yes, I understand.

MR BURTON:   When I referred to the question of fact, your Honour, the trial judge really had a difficult task when he had to weigh up difficult issues of credibility.  May I direct the Court’s attention to page 5 of the application book.  We will see in the introductory remarks by his Honour Justice O’Sullivan, he said at the final paragraph there in the first introduction, “The matter turns in no small degree upon the credibility of the plaintiff”.  And may I refer your Honours to page 15 of the application book where the trial judge, who had the advantage of watching the demeanour and make an assessment of the credibility of the plaintiff, made these remarks at lines 5 to 10:

I have felt some unease about the plaintiff’s reliability as a witness and this was not lessened by the manner in which he gave evidence.

And then at the bottom:

I do not make a finding that his testimony is accepted by me in its entirety.  In my view, it is appropriate to approach the matter on an issue by issue basis.

That influenced, as well, the approach adopted by the Supreme Court.  If I could direct your Honours to page 76 of the application book, where he said:

I emphasise that his Honour in his reasons referred to the plaintiff’s personality with some tendency to exaggeration.

And further down:

He noted the difficulty, in these circumstances, of assessing the nature and degree of the appellant’s pain state, he having the difficult task of evaluating the multitude of conflicting medical evidence together with the videos -

and on page 77, lines 15 to 20:

The assessment of this head of damages depends, in these somewhat unusual circumstances, upon the trial Judge’s view of the credibility of the appellant generally which was of paramount importance.

Now, in weighing up the issue as to whether or not the award for future medical expenses was appropriate, the trial judge, with great respect, did not err.  And the reason for that, if I could direct the Court to page - if the Court could just bear with me - where the trial judge made findings that the pain state - the medical condition was not permanent.  And there was some ground for optimism.

TOOHEY J:   That is dealt with on pages 34 to 35, is it not?

MR BURTON:   I am indebted to your Honour.  Yes, page 35 of the application book where the trial judge said:

I do not consider it likely that the plaintiff will permanently require these other medications.  There are, I think, grounds for optimism that as his pain is brought under control by means of the stimulator his need for other treatment will disappear.  In my view it would be reasonable to expect that his present rate of consumption will diminish and all but disappear within a few years.

So that was an evaluation which was open to the trial judge and considering that, the Full Court gave weight and respect to the decision of the trial judge who had the advantage of hearing the evidence, assessing the conflicts between the medical experts and, where, on page 81, the Supreme Court said:

The learned Judge set out carefully considered reasons for the conclusion that he reached as to the adequacy of the total amount awarded under this head of damages.

Then he took into account the factors as set out in (i) to (v) on page 82 of the application book and concluded that:

The vagaries of the prognosis of the future medical needs of the appellant placed the learned Judge in an unenviable situation.

With respect, what the applicant wishes the High Court to do is re‑evaluate the evidence and the questions of fact.  In my respectful submission, it is not the function of the High Court in cases like this.  This is, with great respect, in my respectful submission, the role and function of the intermediary courts to determine questions of fact and what would be appropriate medical treatment.

When one takes into account all the findings and, in particular, when one takes into account the concerns of the trial judge about the reliability of the applicant as a witness, his unusual personality and tendency to exaggeration, the uncertainty surrounding the applicant’s medical condition and prospects, the vagaries of the prognosis of his future medical needs, the discretionary and factual nature of the award of damages and the failure, with respect, by the applicant to demonstrate any error of approach of principle adopted by the trial judge or the Full Court, it is my respectful submission that this case should fail on the ground that it does not raise any question of general importance or general application and, furthermore, it is not attended with sufficient doubt.

In essence, with respect, what the applicant is asking the High Court to do is have another go at the evidence and really go against the trend of High Court authorities of Abalos and Devries ?? that, when findings of fact are made, it is not open for the appellate court just to find against them because it may be against the probabilities of the evidence.  So, in my submission, your Honours, this is not also a suitable vehicle for determination by the High Court in that it raises any general principle of public importance with regard to any question of law.  It really turns on the facts and on the credibility and the trial judge and the Supreme Court did their best in the situation.

BRENNAN CJ:   Thank you. 

MR BURTON:   Unless there is anything further you would like me to address your Honours, those are the submissions for the respondent.

BRENNAN CJ:   Thank you.  Mr Semini, do you have anything to say in reply?

MR SEMINI:   Yes, I do, your Honours.  Mr Burton quoted from page 35 of the application book and it is very important because it shows the illogicality of reasoning that his Honour applied.  If you turn to page 35, specifically at line 14, what his Honour is saying there is in the preceding paragraph it talks about additional medications to the ones that I am claiming were required in this appeal and which I seek the Full Court of the Supreme Court to re-examine on the evidence that it had before it and should have applied proper discretion and application.  So, when his Honour says:

I do not consider it likely that the plaintiff will permanently require these other medications

“other” is the crucial word.  “Other” is not what I am seeking special leave for; “other” is the ones listed in the preceding paragraph.  Then his Honour says:

There are, I think, grounds for optimism that as his pain is brought under control by means of the stimulator his need for other treatment will disappear.

Not “his need for the stimulator will disappear”, and that is again - his Honour misapplies things.  The facts asserted by him and found on appeal were that “pain indefinite, need for stimulator indefinite”, all these things, “stimulator, the only thing that works, known to science”, those are the words of the evidence he accepted by Salmon in the judgment, “the best known to science today”.  That is it.  That is surely all the prophesying a judge can do.  If science has not invented the cure, then prophesying beyond what science currently has to deal with a problem is illusory.  The judge did not do that.  He found what the best that science could give me was and he agreed with it, but then in the ‑ ‑ ‑

BRENNAN CJ:   What he found was, at the bottom of 34 and the top of 35:

There is a 25 per cent chance that he will be left with an ongoing need for the epidural stimulator.

MR SEMINI:   Yes, your Honour, but what I say to that is, that is applying the facts that he found to the decision arrived at with the assessment and that is discretionary, that is right.  The assessment is discretionary, and Mr Burton spoke about issues of credibility, and that sort of thing, throughout the judgment, as you will see.  His Honour says that he decided

the matters on an issue-by-issue basis, accepted the expert testimony in preference to myself, which is what he should have done.

I am not seeking the High Court to have another bite of the cherry.  What I am seeking is special leave to ascertain, in the present case, get the matter back to the Supreme Court for the proper determination, but in the process of doing that, establish some guiding principles so that this sort of application, through discretion, are facts found by himself is conformed.

In other words, does a citizen in this country have a legitimate expectation that when a court finds facts, that they will apply in conformity, those facts to their decision?  I say, yes.  If we expect from our Ministers of the Crown absolute integrity, flow on, we expect their decisions to be reasoned, to be explained, to be logical.  When I expect that of the Ministers of the Crown, I do not think it is an onerous, unfair expectation for the courts to apply the same, notwithstanding the fact that I acknowledge that courts should hold the ultimate discretion to find as they choose.

I agree with that but when one is faced with the unopposed evidence of the medical findings, the judge then says, “All right, I am not going to accept Mr Semini’s testimony of himself in toto.  I am going to decide on issue by issue basis”, and his Honour rejects the assertion I am a generally unreliable witness, rejects the assertion as advanced by the then defendant.  When his Honour does all of that, then arrives at findings, that yes, permanent significant disablement, yes permanent epidural dorsal column stimulator.  The words of his Honour are “permanent”.

When that discretion in the assessment of the damages is not in conformity with the findings of the court, that causes me a problem and it causes Australia a problem because what happens is, in my view, unless the trend is corrected, unless incremental adjustments are made to the assessment and the application of discretion, things go awry and I do not see that it is an inordinate request for the High Court to grant consideration of my special leave application.  I thank your Honours for your time and indulgence.

BRENNAN CJ:   Thank you, Mr Semini. 

Mr Semini’s submissions have been most helpful.  The application in this case by a plaintiff who has been seriously injured depends upon the correlation between the future prospects of employment and the future need for medical expenditure, especially expenditure on the maintenance and replacement of an epidural stimulator. 

Although there is some correlation between the two, the facts found by the trial judge or considered by the Full Court do not show so close a correlation as to require an increase in the assessment of damages for future medical expenses.  That being so, no error in principle appears from the judgment of the Full Court and it is therefore necessary to refuse special leave to appeal.  Special leave will be refused.

MR BURTON:   May it please your Honours, I am instructed to ask that an order be made that the applicant pay the respondent’s costs of defending the application.

BRENNAN CJ:   Are you?  Yes, Mr Burton.  What do you say about that, Mr Semini?

MR SEMINI:   Your Honours, I am simply unable to facilitate payment.  I believe that I had - the injustice suffered to me might not have been enough to warrant the intervention of the High Court, but I believe it was a lot and it should be borne in consideration in the application for costs.

BRENNAN CJ:   Yes. 

MR BURTON:   May I be heard on that issue, your Honours?

BRENNAN CJ:   Yes, Mr Burton.

MR BURTON:   May it please the Court.  This matter has caused my client considerable inconvenience and expense in defending these proceedings and, in particular, I am instructed to point out that the applicant did receive a substantial common law damages award, that he did manage to fund his air fare up to Canberra to attend before the Court ‑ ‑ ‑

BRENNAN CJ:   I do not think you need proceed on that, Mr Burton.  The question of costs in this Court are questions which, as a matter of practice and of law, necessarily have to follow the event.  So that whatever the pain and the difficulty may be of the making of an order for costs, I am afraid that the Court has no option but to grant your application and to refuse special leave with costs.

MR BURTON:   May it please the Court.

BRENNAN CJ:   That will necessarily be the order that the Court has to make, and the Court makes that order accordingly.

MR BURTON:   As the Court pleases.

BRENNAN CJ:   The Court will now adjourn.

AT 5.01 PM THE MATTER WAS ADJOURNED