Somerset v Hillenberg

The applicant, Ms. Somerset, sought special leave to appeal to the High Court of Australia against a decision of the Court of Appeal of the Supreme Court of Queensland. The Court of Appeal had struck out her appeal against a judgment of a Supreme Court judge without a hearing. The application was heard by Brennan ACJ, Dawson J, and McHugh J.

The central legal issues before the High Court concerned the nature of fairness in civil proceedings, the responsibilities of the court and opposing counsel towards an unrepresented litigant, and whether a right to a retrial arises from an unfair trial. Crucially, the Court was asked to consider whether such a right to a fair trial, and consequently a right to a retrial, is a personal right that vests in a bankrupt and does not transfer to a trustee in bankruptcy, particularly when the appeal itself might be out of time.

The applicant's argument was that the right to a fair trial is a self-evident, substantive personal right, akin to that recognised in criminal matters, and therefore remains with the bankrupt even after bankruptcy. This personal right, it was contended, did not transfer to the trustee in bankruptcy. The applicant sought leave to appeal on the basis that her original trial was unfair, and that if an unfair trial occurred, a right to a retrial should follow, which she argued survived her bankruptcy. The High Court was therefore required to determine the fundamental question of whether a right of appeal, or a right to a fair trial, subsisted in the applicant personally despite her bankruptcy.