State of New South Wales v Canellis & Ors; State of New South Wales v A.B.

[1994] HCATrans 250

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.,

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S30 of 1994

B e t w e e e n -

THE STATE OF NEW SOUTH WALES

Applicant

and

GEORGE CANELLIS

First Respondent

HON. JOHN PATRICK SLATTERY

AO QC

Second Respondent

ANDREW PETER KALAJZICH

Third Respondent

Office of the Registry

Sydney No S31 of 1994

B e t w e e n -

THE STATE OF NEW SOUTH WALES

Applicant

and

Canellis	1	11/3/94
MASON CJ
TOOHEY J
MCHUGH J

AB (Formerly WARREN ELKINS)

First Respondent

HON. JOHN PATRICK SLATTERY

AO QC

Second Respondent

ANDREW PETER KALAJZICH

Third Respondent

Applications for special leave
to appeal

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 MARCH 1994, AT 2.20 PM

Copyright in the High Court of Australia

MR K. MASON, OC, Solicitor-General for New South Wales: If

the Court pleases, in each of these matters I

appear with my learned friend, MR P.I. LAKATOS, for

the applicant. (instructed by H.K. Roberts, Crown

Solicitor for New·south Wales)

MR M.F. HOLMES, QC: If the Court pleases, in the first

matter I appear for the first respondent, and with

me is MR D. ROBINSON.	(instructed by Cara &
Company)

MR M.L.D. EINFELO, OC:  May it please the Court, I appear

with MR D.R. CAMPBELL for the first respondent in

the second matter, described as AB but otherwise

known as Mr Elkins, Your Honours. (instructed by

Verekers)

MR J.S. GORDON:  May it please the Court, I appear on behalf

of the third respondent in each matter with my

learned friend, MR J.I. DORIS. (instructed by

McGlynn & Partners).

Perhaps I should inform the Court that we

support the applicant in this matter.

MASON CJ:  Yes, Mr Gordon. The Deputy Registrar has

certified that in each matter she holds a letter

from the New South Wales Crown Solicitor advising

that the second-named respondent submits to all

orders save as to costs.

Mr Solicitor, we think we will give the

respondents the opportunity, in the first instance,
of persuading us that we should not make an order

granting special leave.

MR MASON: If the Court pleases.

Canellis 2 11/3/94

MASON CJ: 

Mr Holmes.

MR HOLMES: 

The gravamen of the opposition to the granting

of special leave lies in the findings of special
facts which are set out at paragraph 5 of our

outline of argument, and we say at the outset that

not only are they special but, in the proposed

notice of appeal, there is no challenge to these
finding of facts in any way.

McHUGH J: But what have they got to do with the case?

MR HOLMES:  The particular ones, Your Honour: paragraph j),

k) and l) where I have summarized the finding of

the learned President. The inquiry:

is being conducted substantially with the aid

of computers ..... (and) the mastery of this

(computer) equipment has involved (and

requires) some training" -

and some of the vast amount of submission material
provided on behalf of Mr Kalajzich in which the
allegations of murder made against my client ·are
contained is not available to lay witnesses at all

but is retained in counsel's chambers to be

accessed by counsel in the absence of their clients
and, finally, the finding of fact that my client

does not have the skills or the level of education

or training to be in a position to access the

relevant material on computer or the ability of

reading, analysing or understanding the data in a

way which could be expected by trained counsel.	In
those circumstances, there is an inquiry being
conducted where evidence is being collated and
presented in a way which it is not accessible by the person against whom the most serious
allegations are made.

McHUGH J: 

Be it so, I just do not understand the process of reasoning that enabled the court to make the

declaration that they did.  You have a statutory

right to appear and the Court of Appeal agrees that	that does not entitle you to get any legal aid from
the government.	No doubt, the rules of natural

justice apply in addition to that, but those rules
are rules which entitle you or your clients to a

hearing if the Commissioner is intending to make

any adverse finding against you.  I would have

thought that Annetts was dead against you.

In Annetts the Court refused to allow

Mr Murray to make general submissions in that case.

He was allowed to make submissions only if the

magistrate, or the coroner in that case, was

intending to make some finding adverse to his

clients.

Canellis 3 11/3/94

MR HOLMES:  Perhaps if I could take Your Honours to a

passage in the joint judgment of Your Honour the

Chief Justice, Justice Deane and Justice McHugh

taking up Your Honours' remarks at page 601, in'the

middle of the page, the paragraph commencing, "It

needs to be stressed that" and going to the very

last sentence in that paragraph:

In opposing the making of any adverse finding, the appellants are entitled to put every

rational argument open on the evidence and,

where necessary, to refer to and analyse the

evidence to support that argument.

McHUGH J: But that is only, as the judgment makes plain, if

the coroner was intending to make some finding

adverse to the interest that Mr Murray represented

in that case.

MR HOLMES: There is a two-stage process, with respect: one

is to be in a position to analyse the evidence and

to address and to exercise your rights of

procedural fairness, should there be a proposed

finding - - - ·

MCHUGH J:  No question of your client's interest may ever

arise in this case. The Commissioner may regard

all evidence seeking to implement your client as absolute rubbish and as the evidence is given he may be totally unimpressed with it and he may never

have any intention whatever to make a finding

against your client or the say anything adverse to

him. Now, how can you submit, if that is the case,

that the rules of natural justice give you any

entitlement other than what the statute gives you?

MR HOLMES:  Because in coming to that decision he is obliged

to report not only his conclusions, his adverse

findings, which Your Honour has said is the

springboard or the initiator for us to respond to

him, but he is obliged to communicate to the

Governor the depositions taken before him and he is

obliged to express conclusions on that material.

Now, it would be too late, we would have been

denied our right to procedural fairness - - -

McHUGH J: But you assume that you have some right,

independent of procedural fairness, independently

of what the statute gives you and independently of

any adverse findings he may propose to make.

MR HOLMES:  Your Honour, there is an affidavit which has

been put on by Mr Cara -I would seek to read that.

It is not in the application book - because that

indicates that Mr Slattery is of a mind to venture

into this area.	It is an affidavit of Mr Cara,
sworn on 9 March.	A copy was faxed to the Registry

Canellis 4 11/3/94

on Wednesday of this week and the original was

filed yesterday.

Your Honours, subsequent to the argument in the Court of Appeal, the matter went back to

Mr Slattery and there were submissions on 1 March and earlier this week, and during the course of the

inquiry on Wednesday of this week a judgment was

handed down. Could I take Your Honours to the

affidavit of Mr Cara, paragraph 3:

Exhibited to me at the. time of swearing this

affidavit and marked "BSC2" is a copy of the

judgment of the Second Respondent given on

8 March 1994 after submissions were taken for

the parties.

Your Honours, if I could go then to the

exhibit, and this was read into the transcript in

the hearing on Wednesday of this week.	It
provides:

In my judgment, Canellis and Elkins coul_d. be

accorded proGedural fairness if they were

provided with paid legal representation as
follows:

1. Supply of daily transcript and materials, with a reading fee and preparation fee to be

given to junior counsel and or solicitor to enable them to keep abreast of the evidence

and materials.

2. During the evidence of Elkins, Canellis,

Orrock, Kalajzich, Gersbach and Woods and such

other witnesses as could affect adversely

Elkins or Canellis and during any further

evidence of Inkster, each of Elkins and

Canellis to be represented by Senior Counsel,

junior counsel and solicitor and each of them

to be paid a reasonable fee for reading

necessary material.

3. Representation during the making of

submissions at the level referred to in 2
above.

4. If the legal representatives of Elkins or witness to be recalled (other than those

specified above) then the costs of that

application including necessary conferences with Senior Counsel should be provided for.

McHUGH J:  Mr Holmes, that statement is made by the learned

Commissioner after the Court of Appeal had made the

declaration which appears at page 80 of the book.

Canellis	11/3/94
MR HOLMES:	Yes, that was the implementation of the

statement.

McHUGH J:  The question is whether the declaration was

within the jurisdiction of the Court of Appeal.

MR HOLMES:  Yes, but Your Honour was asking me how do we

know that the Commissioner proposes to make a

comment or to deal with the matter which affects my

client's rights.

McHUGH J: 

You certainly do not know it from that decision.

are we not, Mr Holmes? That is not made by way of
criticism of you but the question is one of

TOOHEY J: 

But we are really drifting from the main point,

representation, is it not? That your client is

entitled to some form of procedural fairness goes

without question and it does not seem to be a

matter in issue. The question is whether that

necessarily carries with it a right to legal

representation.

MR HOLMES: Without accepting the analogy to a criminal

trial, I indicated the special facts found were

that the evidence was being presented to the

parties in a way so that it was only comprehendible

and capable of being analysed by way of computers

and so it was not able to be understood by my

client.

McHUGH J: Yes, but, Mr Holmes, what seems to me to be

missing, with great respect, from the Court of
Appeal judgment is a conscious realization that it

is only when there is to be an exercise of power

adverse to your client's interest by a government

official that the rules of natural justice apply.

Merely because the inquiry has been embarked upon

does not fall within that principle. It will not

be unless and until the Commissioner decides to

make some representation concerning your case and

say something about your client adversely that the

common law rules of natural justice operate to

supplement your statutory right of appearance that

you get under the Act.

MR HOLMES:	Your Honour, we would say that the content of the rules of natural justice or procedural fairness
requires, before that step be made, that we be
informed of the evidence that is being led against
us.
MASON CJ:	But how are you going to persuade us that that is

a correct view of the matter when this judgment of

the Court of Appeal roams far beyond anything that

has ever been established as being within the

concept of procedural fairness or natural justice?

Canellis 6 11/3/94

There is no case in which, apart from this

decision, natural justice has been held to include

this content.

MR HOLMES: Without accepting the analogy, in the analogous

area of a right to a fair trial or a right not to

be tried unfairly, you have a right to hear the

evidence that is being led against your character.

MASON CJ: Exactly, but that is Dietrich. That is a

criminal trial, and what Dietrich established, in
terms of an entitlement to costs in relation to

accusations of serious offences and an entitlement

in hearing indigent persons, is confined to that

context. This decision, if you are looking at

Dietrich as a foundation for advance, moves far

beyond Dietrich for reasons partly given by

Justice McHugh.

MR HOLMES: With respect, I was not seeking to rest on

Dietrich. What I was seeking to draw the analogy with was it is as if the inquiry is being conducted in a foreign language. In those circumstances, the

immediate reaction would be, just as procedural

fairness requires - - -

MASON CJ:  An interpreter.

MR HOLMES:  - - - an interpreter. Now, there is a finding

of fact that the material is being collated and

presented and accessible only by counsel through

computers. So, my client cannot exercise his

statutory right - it is illusory, it is nugatory -

because he has not been given access to the

material which is led against him. That is why we

highlighted the facts found by Justice Kirby, that

it is the nature of the presentation of the

inquiry, the way in which it is being conducted.

It is not as though you can sit there and listen to

it because it is all on computers which is only

accessible by the counsel.

MASON CJ: Granted that, it still seems to me that the step

that is taken here is one that ought to be examined

by this Court.

MR HOLMES:  Your Honour, in our submission, it is a

fundamental - - -

MASON CJ: Because it obviously has, if it is being put on

that footing, ramifications extending far beyond

the reach of this case, because it will extend to

all cases which are being conducted by way of heavy

reliance on computers.

McHUGH J: Which are most heavy cases these days.

Canellis 7 11/3/94

MASON CJ: So, it destroys your submission that this is a

special case resting on its own particular facts.

MR HOLMES:  With respect, no, Your Honour. With respect, we

would not accept that because we would see it

rather as a confluence of facts, one of the special

factors being the material is only accessible to

counsel through a computer. In fact, in the third

respondent's submissions that point is relied upon

in the penultimate paragraph of the submissions.

McHUGH J: With great respect, there is terrible confusion

of thought. You jump from the statute to natural

justice. As I have said to you earlier, natural

justice could only arise at some later stage in

these proceedings.

MR HOLMES:	Your Honour, that is why I am joining issue with you. For example, one does not say, "Well, look,
we will only have to interpret the sentence against
you if you cannot understand the evidence that is
being led against you or the evidence that is being
led at the inquiry."

McHUGH J: But the point is that rules of natural justice

may never be called into operation because there

may be no exercise of power against you or proposed

exercise of power which affects your interests.

You have either got to get your right out of the

statute or you do not get it at all. It seems to

me at this stage that you cannot support this

declaration on the ground of natural justice.

MR HOLMES:  Your Honour has suggested that the right to

procedural fairness only springs at the stage where

a finding is going to be made against you. We

would submit, as an alternative basis, that you

should be accorded procedural fairness to prevent

such finding being made. Now, you can only do that

if you are present during the hearing. Mere

physical presence of Mr Canellis, who does not

speak the computer language, would be a denial of

that procedural fairness.

McHUGH J: Mr Holmes, if,in 10 months time or whatever the

date was, the Commissioner sought to make some

finding against your client and you had not been

present at the inquiry or you could not understand

things, then it may be that you have some real

argument about natural justice at that stage and it may be that you would be entitled to have witnesses

recalled or something of that nature, but that is

very different from declaring that the continuation
of the hearing presently being conducted, without

proper and reasonable legal representation being

given to you, constitutes a breach of the legal

requirements of procedural fairness.

Canellis 8 11/3/94

MR HOLMES:	Your Honour, we would, with respect, say it is after the horse has bolted to say, "Well, you can
come in - after all of the evidence has been led
against you; the witnesses have not been tested by anybody appearing in your interests; and all of the
adverse publicity and the damage to your
reputation" which is a legitimate interest to
protect, and it is only at the end when the
Commissioner is sitting down to write submissions
and he says, "I look as though I have formed a
prima facie view that I am going to make a finding against you", that procedural fairness requires you
to go along then and to recall - - -

McHUGH J: But you also assume that you are entitled to

cross-examine witnesses as a matter of procedural

fairness at common law. That does not necessarily

follow at all. You have statutory rights but you

want to supplement them.

MR HOLMES:  Your Honour, I perhaps repeat the submission

that it would be after the horse has bolted to be

given evidence which has been led and told what

that evidence is, it would be too late for you to

exercise your procedural rights, your rights to

procedural fairness.

McHUGH J:  Mr Holmes, on the hearing of an appeal you may be

able to convince me that that is right but at the moment it seems to me that there is a strong case

for the grant of special leave to appeal in this

case.

MASON CJ:	You may have better luck with other members of the Court when you are addressing a Court of seven,
Mr Holmes.
MR HOLMES:	Yes, Your Honour. They are my submissions, if

Your Honour pleases.

MASON CJ:  Mr Justice McHugh may fall ill between now and

then. Yes, Mr Einfeld.

MR EINFELD:  My friend may have had to bear the brunt of the

frontal attack, as it were.

Can I deal with the two preliminary matters

that have been raised, if I may so describe them,

and deal with Justice McHugh's first point, that
the point in time has not yet arrived at which the

demands of natural justice are required to be met.

It is a consequence of the decisions of the Court

in Annetts and Ainsworth that where reputation and

the like, the other interests protectable by the

dictates of procedural fairness are in issue, that

one has, so it was said, particularly, in Ainsworth

v Criminal Justice Commission, they are not just to

Canellis 9 11/3/94

make submissions but to tept the case which is

being put against one, to test the witnesses who
provide the evidence upon which it is to be

submitted in due course that the findings sought to

be made are made and, with the greatest of respect

to what has fallen thus far from Your Honours, we

would respectfully submit that it is to put at

nought the comments of Mr Justice Brennan in

Annetts that where one's reputation, property,

rights, other protectable rights are at risk, then

the affected person is entitled to a full and fair

opportunity to be heard on the matters likely to

affect that right.

McHUGH J:  On that basis, every second civil trial would have to be stopped.

MR EINFELD:  Your Honour, I will deal with civil trials in a moment because they are quite different. The

second matter that I was going to raise was that

what perhaps has been overlooked thus far is that an advers.e step has been taken, certainly against

my client, Mr Elkins, and that is he has already

been summoned to appear. Whilst one accepts ·that

there are two fountainheads, as it were, of the

rights sought to be agitated that were below and that we contend for - one the statute; secondly,

either separately or in a supplementary way, the

common law, and indeed remembering what was said in

Ainsworth, that the answer to the question of the

applicability of rules of natural justice is not to

categorize the nature of the proceedings but to
look to the exercise of the power, where the

justice in this case, the Commissioner has already

compelled our attendance by summons, to suggest

that at the end after all the evidence is concluded

that we then enter into the fray, as it were, to

make some kind of submission that suggests that an

adverse finding ought not to be made, would require

at that point in time, as a matter of procedural

fairness, the right to cross-examine all of those

witnesses who may have given evidence before who

have not been effectively or properly

cross-examined - because to suggest, with respect,

that we come at the end of the day, after all the

adverse evidence may have been given about my

client who, together with Mr Holmes' client, have

been described as likely to bear the frontal attack

in this inquiry - not only to bear the frontal

attack but have been described as at the focus or
the centre of it - to suggest that they can come at

the end of the day and make some submission to the

effect that, "You, Mr Commissioner, ought not make

an adverse finding against me" when, after nine or

six months, however long the hearing has taken,

evidence has been given not properly capable on the

findings of the court below of being properly

Canellis 10 11/3/94

addressed or attacked because of the lack of

educational skills or computer skills or otherwise

of my client, would be to defeat the very

achievements that have been made in this country in

the areas of natural justice and procedural

fairness over the last decade or so.

McHUGH J: You have statutory rights in respect of the

evidence that has been given.

MR EINFELD:  My statutory rights, Your Honour, are to appear

and to cross-examine witnesses, and if that is not

to be an empty right it must be a meaningful right.

McHUGH J: It means you can cross-examine.

MR EINFELD:	One asks, in the context of this case, how does an uneducated computer illiterate person whose
previously granted immunities from further prosecution are at risk, because he has been admitted, as the evidence establishes, to the
State's witness protection programme and the like,
appear every day in a nine-month hearing, as it has
been anticipated to be, in what both counsel··
assisting the inquiry and the Commissioner himself
and counsel for Mr Kalajzich have described as an
inquiry likely to deal with subject-matter of the
greatest complexity. Indeed, in one of the
exhibits below, described by Mr Kalajzich's
counsel as being beyond the intellectual capacities
of a judge of the Supreme Court of New South Wales
and experienced senior counsel previously involved
in the matter - what prospect, realistic prospect, is there of any procedural fairness of however minimal standard being afforded to a person in my
client's position?

MASON CJ: That even suggests that if he has senior counsel

appearing for him he will not get procedural

fairness.

MR EINFELD: .There is no doubt, on the way this case has	been presented, that Your Honour may well be right,	that experienced counsel will find some difficulty
in dealing with what are said to be the
complexities of the case. The petition alone to
the Governor was said to run to 1200 pages. There
is a great deal, we understand, as appears from the
judgments - - -

MASON CJ: But let us get away from the particulars of this

case and come back to the general principle and how

it has been applied. Now, it does seem to me that

anyone looking at this decision, conversant with

how far natural justice has progressed, the

advances to which you refer, would say, "This is a

breakthrough decision. Natural justice has been

Canellis 11 11/3/94

taken further than it has ever been taken before
because it requires that costs be provided to
persons who are possibly affected by the o·...itcome of

an inquiry, which will not result in any orders

against them bilt may result in certain findings

which could have an adverse effect on their

:i:eputation and otherwise adverse consequences."

Now, that being so, why is it not a matter of

very considerable importance, having regard to
possible ramifications of this approach, that

requires this Court to have a look at it?

MR EINFELD:  The answer is in the decision of this Court in

Dietrich itself. In Justice Toohey's judgment at

page 357 of Dietrich, 177 CLR, His Honour was at
pains, as was Justice Gaudron, the only other

Judge, we think, who dealt with the question, to

point to the fact that the question of public

funding is irrelevant in this sense. His Honour

said at 357 point 5:

It may be said that a court cannot control the

allocation of government funds such as those
provided for a legal aid scheme and that a

court is not responsible for the fact that an

accused appears unrepresented before it.

Those assertions are no doubt true. The

organization of legal aid is a matter for

government. Many considerations enter into

the provision of legal aid, not the least of which are the many other demands made on the resources of government.

Thus far, matter - public importance.

However, once an accused appears before a

court, the unavailability of legal
representation does become a matter for the court, not because the court can remedy the

situation by insisting upon the appointment of

counsel, but because the court must then

·assess whether a fair trial may be had by the

accused without legal representation.

I appreciate that is in the context of a criminal

trial. At page 361 His Honour said:

The present application clearly calls for

a grant of special leave to appeal ..... The
outcome of the appeal itself turns, not on a

right to counsel at public expense, but on

what Deane J described -

in Jago -

Canellis 12 11/3/94

as the ·«central prescript of our criminal

law ... that no person shall be convicted of

crime otherwise than after a fair trial

according to law" .

And before I leave the decision, may I just refer

to the passage in Justice Gaudron's judgment at

pages 364 to 365 where the same point is made:

The question in this case can be put in various ways, including whether an accused

person who cannot provide for his own defence

has a right to be provided with counsel at

public expense. No right of that kind is

conferred by statute -

as here -

nor has it been recognized by the common law.

As here.

Indeed, there are passages in Mcinnis v The

Queen which ~eny the right exists. · ·

Accordingly, if put in terms of a right to be provided with counsel at public expense, the

question is whether a right of that kind

should now be recognized. The question

whether public funds should be allocated for
the legal representation of persons charged
with criminal offences is one for governments,

not the courts. But, as already indicated, courts are duty bound to ensure that trials

are conducted fairly.

MASON CJ: But that is all an outgrowth of the right to a

fair criminal trial. It does not go beyond that.

MR EINFELD:  I accept that, Your Honour. Nobody suggests

that Dietrich is a foundation for the orders sought

to be upheld being the reasons in the court below

or the declaration ultimately made. What does emerge from that consideration is that it is not	apposite to look to the end result and say there
would be a public outcry if in every inquiry all
witnesses were to be afforded public funding for
their counsel or anything of the kind. What one
looks to is the circumstances of this case,
firstly, and determines whether there is any
prospect that Mr Elkins or Mr Canellis can have a
hope of a full and fair opportunity, as it has been
described by this Court, of defending their right to reputation and the like in the circumstances
where they are both described as having been
accused, for the purpose of this inquiry, as being
intricately involved in the murder from which this
inquiry ultimately sterns and, in my client's case,

Canellis 13 11/3/94

said ~o be effectively the centre of a major

conspiracy to proc::ure Mr Kala,jzich's conviction and pervert the course of justice.

Now, how could anyone with limited educational

skills, in a case like this said to be of the

complexity that it is, hope to have any kind of a

fair opportunity to put his case, to cross-examine

witnesses who may give, as they inevitably are said

by those representing Mr Kalajzich will happen in this inquiry - - -

TOOHEY J:  When you put it that way you are really only

pointing up that you cannot confine this decision

to the particular facts. There are principles

which emerge from it which clearly have a wider

operation than apply to the circumstances of this

case and it is that aspect, I would think, that

calls for examination by this Court.

McHUGH J: Implicit in your submission seems to be the

proposition that you have a right, under the rules

of natural justice, to defend yourself against the
allegations that Kalajzich and others are making
against you. Now, that is not what the rules of
natural justice say. They operate in the context

of a government official exercising power against

your interests.

MR EINFELD:  And that is exactly what the position was in

Ainsworth v Criminal Justice Commission, and this

Court held that absent the opportunity for - and, indeed, even in Wentworth v NSW Bar Association, absent the opportunity to exercise a fair opportunity to correct or contradict adverse statements, to test the adverse case and the

evidence called, in all of those cases one has a

circumstance, particularly, for example, in

Ainsworth where there is a government or a public officer exercising rights which may have adverse

effects on the individual citizen and, in those

circumstances, whilst we readily accept that no	court has gone so far as to say, thus far, that in	the particular circumstances of the case the rules
of procedural fairness require legal
representation, where one has what we would submit - and I want to do so just very quickly
before I finish in answer to what Justice Toohey
put to me a moment ago - an almost extraordinary
combination of unusual facts, this case does not
have the broad ramifications for which the applicant would contend.

MASON CJ:  I am certainly not convinced of the correctness of that statement.

Canellis 14 11/3/94

McHUGH J:  It seems to me tha~ the decision can only stand

if the rul~s of natural justice operate before a

government official exercises power. In other

words, operates only if he ·is likely to or that

there is a possibility.

MR EINFELD:  There is certainly a possibility in this case.

McHUGH J: That is right, but that is what you have to

maintain and no other case I know of has gone so

far.	I mean, just take out your statutory right of
appeal.

MR EINFELD:  Yes, I am leaving that aside.

McHUGH J: Right, if you just left that out. The rules of

natural justice entitle you to go along and be

heard at the inquiry at this stage, even before the

Commissioner made any recommendations or intended

to make any recommendation.

MR EINFELD:  No. If it had not been indicated that we were

required to give evidence and that the purpose of

the inquiry, as has been indicated here, was ·to

establish that my·client was guilty of perjury,

conspiracy, perverting the course of justice and

the like, Your Honours, I would not, with respect,

cavil with what Your Honour puts, but that is not

this case.

McHUGH J: But it may turn out to be this case. The

Commissioner may believe everything that your

client says.

MR EINFELD:  Of course, we would submit he will.

McHUGH J:  In which case, you were never in jeopardy. The

rules - - -

MR EINFELD:  But, Your Honour, how can that be? How can we

seek to persuade the Commissioner to that view if

we have to wait until the Commissioner has already

formed a preliminary view? That is like saying -

and it is dangerous to slip into analogies with

civil cases in committal proceedings on this

application - that is like saying that the accused

at the committal proceedings should wait until the

magistrate finds there is a prima facie case before

he seeks to cross-examine the witnesses. In this

case we know, as an established finding of the
court of first instance and on appeal, that the

thrust of the appeal, the path which Mr Kalajzich's

own petition and subsequent indications to the

Commissioner have dictated is that he is not simply

choosing to seek to have it determined at the end

of the day that there is some doubt attendant upon

his conviction, that he is seeking to do it by

Canellis 15 11/3/94

pointing the finger squarely at Canellis and

Elkins, and he is saying, "You did it,_ not me" in

effect, and_in that circumstance, with respect; it

cannot be right, as a matter of procedural

fairness, that we should wait until the inquiry is

fairly over and then seek to participate with

meaningful legal representations so that we can

avail ourselves of what this Court has held to be

the full and fair opportunity, not just to be

heard, not just to be present, but to contradict

adverse statements, the right to test the adverse
case and the evidence called and the right to put a

case to the contrary.

Now, Your Honours, with respect, the

circumstances of this case, to answer the
Chief Justice's inquiry of me about the particular circumstances of this case, are as follows - and we

have set them out in our submissions, but I only

want to indicate three. One of them is that this

inquiry, of course, has very wide terms of

reference, in effect, confined only by the factual

parameters of the circumstances of the trial

itself.

Notwithstanding that, it is critical, in our

submission, that the right to which Your Honour
Justice McHugh has referred has already long since

arisen, that it is Mr Kalajzich who has chosen,

notwithstanding the broad parameters of the terms

of reference of the inquiry, to, as it were, put us

at the focal point of the inquiry itself.

Secondly, we know from what we have been told

that the complexities of this case are sufficient

to challenge even the most able lawyers. Thirdly,

we know that my client is not only unskilled in

legal matters as are, perhaps presuming, most

defendants and certainly most witnesses but, in his

case, uneducated; in his case, unable to access

documents which are said to be at the heart of the

inquiry and which, by the way, are not even

apparently reproduced in hard copy but only on

computers.

The government has seen fit to afford in

excess of $500,000 legal assistance to

Mr Kalajzich's interests including computer

literate - - -

MASON CJ: Yes, we know all that.

MR EINFELD:  The point, Your Honour, is that having, on the

one hand, determined in an inquiry where there are

two competing interests although none of them

strictly parties but where the inquiry is very much

polarized, to afford substantial legal assistance

Canellis 16 11/3/94

to one party, including research assistance and

computer educated, and none to us is a denial of

procedural fairness. In those circumstances,

Your Honour, that is an extraordinary combination

of circumstances that may have never happened

before which is why there is no decision which goes

to the extent, on its facts, as this one has.

If one brings to account those factors, and

bearing in mind also that the Court of Appeal has not ordered a stay in this case but a declaration as to the rights of procedural fairness which, in

our submission, would mean if exceeded, there is

jurisdictional error, that a choice is open to the

Crown.	It can afford legal representation or it
need not.	The Court is entitled to conclude that

the Crown will abide the expression of view of the

Court. In those circumstances, in our submission,

it is not appropriate to conclude that either this is some, in effect, back door means of forcing the

State to fund particular party's litigation as was

said in the passages I read from Dietrich. Rather,

the focus is upon whether or not my client has a

fair hearing. In our respectful submission, ·that

is special to the· facts of this case. It does not

have the broad ramifications for which the

applicants contended and Your Honours have

indicated.

The mere fact that it has gone further in the

application of the dictates of procedural fairness,

in our submission, is by no means a reason for the

grant of special leave if, as we submit it is, the reason for that is the special nature of the facts

falling for determination in the proceedings.

It is for those reasons, Your Honour, that we

respectfully submit that special leave ought be

refused. If the Court please.

MASON CJ:  We need not trouble either you, Mr Solicitor, or

you, Mr Gordon. There will be a grant of special

leave in these matters.

MR EINFELD:	Your Honours, before Your Honours prepare for the next matter, we have, I think in each case, in
Mr Holmes' submissions and cur's, sought an order that any grant of special leave be conditioned upon
an order that the State pay the costs of the
respondents on the appeal in any event. We would
press for that order, Your Honour, having regard to what are said to be the broad ramifications of the matter, and also not disturbing the orders below?

MASON CJ: What do you say to that, Mr Solicitor?

Canellis	17	11/3/94
K~ MASON:	They certainly sought more than that.	They

wanted the non-disturbance of the costs orders

below as well as a condition of leave. If that is

a condition the Court imposes then, obviously, that
price will be paid as the price of special leave
but it certainly should not extend at this stage to

an order that the costs order made by the Court of

Appeal should necessarily stand. If the Court

thinks it appropriate that that be a condition, we

will naturally abide by it.

TOOHEY J: What about the costs of the appeal itself,

Mr Solicitor?

MR MASON:  It is in the same situation, if the Court thinks

it appropriate.

MASON CJ:  The grant of special leave in each application

will be conditioned on the applicant paying the
costs of the respondent in the appeal in this Court
but otherwise all questions of costs would be dealt

with by the Court on the hearing of the appeal.

AT 3.04 PM THE MATTER WAS ADJOURNED SINE DIE

Canellis 18 11/3/94