Somerset v Hillenberg

[1993] HCATrans 195

..

.

,.

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry No B41 of 1992

Brisbane

B e t w e e n -

E.J. SOMERSET

Applicant

and

G.M. & N.M. HILLENBERG

First Respondents

JAL BIGA PTY LTD

Second Respondent

THE COUNCIL OF THE CITY OF

TOOWOOMBA

Third Respondent

ELLIS M. BLANCH

Fourth Respondent

Somerset	1	2/7/93
BRENNAN ACJ
DAWSON J McHUGH J

C.J. BLANCH

Fifth Respondent

ESANDA FINANCE CORPORATION

LIMITED

Sixth Respondent

Application for special leave

to appeal

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 2 JULY 1993, AT 2.00 PM

Copyright in the High Court of Australia

MR M.R. BATTLE:	I appear for the applicant.
MR R.F. KING-SCOTT:	I appear for the third respondent.

(instructed by Watkins Stokes Templeton)

MR D.S. SAVAGE: If the Court pleases, I appear for the

sixth respondent. (instructed by Corrs Chambers

Westgarth)

BRENNAN ACJ:  I understand that there is no appearance for

the second, fourth and fifth respondents, is that

so?

MR BATTLE:  I would think it looks like that, Your Honour,

yes.

BRENNAN ACJ: Yes, Mr Battle.

MR BATTLE:  The applicant applies for special leave to

appeal against the decision of the Court of Appeal

of the supreme court where her appeal against the
judgment of a supreme court judge was struck out

without being heard. The points of law of public

importance submitted for clarification were the

applicant to be granted leave are: what constitutes

fairness in civil proceedings, what are the

responsibilities, if any, of the judge and defence

counsel to an unrepresented plaintiff who is not

legally qualified, and thirdly, if a trial is

unfair, does a right to retrial follow and, if so,

does this survive a subsequent bankruptcy.

The question of costs, in my submission, with

access to the courts as of great national concern
at the moment, and the likelihood one - - -

McHUGH J: But is not the first question as to whether or

not there is any right of appeal?

Somerset 2 2/7/93

MR BATTLE: Well, that goes to the question of whether the

right of appeal survives the bankruptcy, in my

submission, Your Honour.

McHUGH J: But that is the critical question, is it not?

MR BATTLE:  Yes. If I could go to the facts leading to the

current application. It may not be clear from the

material before the Court - - -

McHUGH J: But you have got to deal with the issue, have you

not? The first - - -

MR BATTLE:  The question, Your Honour, of standing relates

to the question of unfairness in that the notion of
fairness, at least in criminal matters, according

to Dietrich, is a self-evident substantive personal

right, and it is not a property or procedural

right. This right remains, in my submission, in

the bankrupt and does not transfer to the trustee

on bankruptcy.

McHUGH J: But the right of appeal certainly does, does it

not? Your problem is that you were out of time so

that the assignment was of no effect unless you

could get an extension of time, pursuant to

section 33 of the Bankruptcy - - -

MR BATTLE:  My argument, Your Honour, is not based on that.

It is based on the personal right that vests in the

bankrupt to a fair trial, irrespective of anything

else. Now, if that is not a proprietary right that

transfers to the trustee, then it still must

be invested in her. It is on that basis that she

comes before the Court today asking for leave to

appeal.

McHUGH J: What would she be appealing against?

MR BATTLE: In the first instance, she is appealing against

the decision of the supreme court judge, and in the

second instance, the fact that her appeal was

struck out without being heard.

BRENNAN ACJ:  Mr Battle, what relief do you get if it is

said that she did not have fairness?

MR BATTLE: Well, I would expect that the application would

be for a retrial, Your Honour.

BRENNAN ACJ:  In other words, the same relief as if the

appeal had been allowed?

MR BATTLE:  Yes, Your Honour.

BRENNAN ACJ: But you have lost the right of appeal.

Somerset 3 2/7/93

MR BATTLE:  We have lost the right of appeal? only as far as

her standing to go before the court and appeal is

concerned. My argument is that if she has a

personal right as far as a fair trial is concerned,

then that still remains, irrespective of the

intervening bankruptcy.

McHUGH J: But a personal right does not, assuming that you

are correct that there is such a thing as a

personal right about these matters, it does not

exist up in the air? The only right is to appeal

against an order, and you have got no standing to

appeal against the order.

MR BATTLE:  Your Honour, I go back to my previous point.

The basis of the appeal is that, if she is entitled

to a fair trial in the first instance, and if she

does not get that, and if she suffers thereby some

detriment, whether it is to her credit or

humiliation, as a result of that proceedings, then

that right that she has to be heard properly,

before a court, would seem to me to remain, in my

argument, in my submission, remain vested in her

irrespective of any intervening transfer of
property right by virtue of the Bankruptcy Act to

her.

BRENNAN ACJ:  Mr Battle, that proposition is legally

meaningless.

MR BATTLE:  I am sorry, Your Honour.

BRENNAN ACJ:  It is legally meaningless. You cannot point

to a remedy which is available in breach of that

supposed right, except a remedy which you have not

any standing to acquire.	How do you make the
argument run?

MR BATTLE:  The only standing, Your Honour, that I can argue

is that personal right. I concede that she has no

concerned that have been transferred to the trustee	right as far as her other proprietary interests are	in bankruptcy. Her only standing to appeal, it seems to me, is in this personal right that she
had, in the first instance, in the supreme court to
a fair trial. Now, if the Court is against me on
that, then I have got nothing - I cannot assist you
further.

BRENNAN ACJ:  Yes, Mr Battle. We need not trouble counsel

for the respondents.

In the view of the Court the decision of the

Court of Appeal was correct. Accordingly, special

leave to appeal is refused.

MR KING-SCOTT:  We would ask for costs.

Somerset 4 2/7/93

MR SAVAGE:  So would the sixth respondent.

BRENNAN ACJ: It is refused with costs.

AT 2.08 PM THE MATTER WAS ADJOURNED SINE DIE

Somerset 2/7/93