West v Hancock; West v Forbes Shire Council & Ors; West v M S Thompson Holdings Pty Ltd & Ors; West v Commissioner of Police

[1991] HCATrans 361

·~-

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl54 of 1988

B e t w e e n -

RAYMOND STANLEY WEST

Applicant

and

ROBIN JOHN HANCOCK

Respondent

Office of the Registry

Sydney No S61 of 1990

B e t w e e n -

RAYMOND STANLEY WEST

Applicant

and

West(2) 1 13/12/91

FORBES SHIRE COUNCIL; APEX
CLUB FORBES; COMMISSIONER OF

POLICE, STATE OF NSW; SPICER

CARAVAN PARK, PARKES, NSW;

CARAVAN CAMPING INDUSTRIES OF

NSW: BOB PADDISON, FORBES, NSW;
BP AUSTRALIA, NSW; and PALMER,
McCALLUM, AKON & McRODER,

FORBES, NSW

Respondents

Office of the Registry

Sydney No S82 of 1990

B e t w e e n -

RAYMOND STANLEY WEST

Applicant

and

M.S. THOMPSON HOLDINGS PTY LTD,
N.B. SMITH HOLDINGS PTY LTD,

A.N. TRIFFIT, E.B. TRIFFIT and

P.N. TRIFFIT

Responde ,1.ts

Office of the Registry

Sydney No S83 of 1990

B e t w e e n -

RAYMOND STANLEY WEST

Applicant

and

COMMISSIONER OF POLICE, STATE OF NSW; LAW COVER; CALTEX OIL

AUSTRALIA PTY LTD; SHERIFFS
OFFICER, STATE OF NSW;

L.A. McKERSIE; S. McKERSIE;

ETHEL McKERSIE;

EUNA McKERSIE; COMMISSIONER OF

POLICE, STATE OF NSW; MITCHEL

PLAYFORD & RADBURN; SAM

PINNISSI; SHERIFFS OFFICE,

LISMORE, STATE OF NSW;

L.A. McKERSIE;, SUSAN TEIRNEY;

PHILLIP FOX & SOLICITORS;

MR P. MAHONY; CONNERY &

PARTNERS; DAVID LEE;

MR D. RONZANI; COMMISSIONER OF

POLICE, STATE OF NSW; MITCHEL

PLAYFORD & RADBURN, CASINO,
NSW; CALTEX OIL AUSTRALIA PTY

LTD, 167 KENT STREET, SYDNEY,

NSW 2000; MR DAVID LENNON,

CHIEF SHERIFFS OFFICER; and

L.A. McKERSIE, FARM 958,

STANBRIDGE, NSW

Respondents

Applications for special leave

to appeal

West(2) 13/12/91

MASON CJ
DEANE J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 DECEMBER 1991, AT 3.12 PM

Copyright in the High Court of Australia

MR W.P. KEARNS:  It is the last matter that gives me my cue.

MASON CJ: This is the Commissioner of Police & Ors?

MR KEARNS:  Yes. The respondents styled as 3, 17, 18, 19

and 22 were served with papers on Wednesday.

Appearances have not been filed but I am instructed

to offer an undertaking that that be done within

seven days or sooner if the Court sees fit.	On
that basis, I appear for those respondents.

MR R.S. WEST:  Your Honour, I was relying on rule 33-933

where that is concerned, Your Honour.

MASON CJ: What rule is this, Mr West?

MR WEST:  High Court Rules, Order 62, Service, Form 33.9.3,

Your Honour - Part 33.9.3: Mode and Time of

Service where not Personal.

MASON CJ: Have you served all these respondents?

MR WEST:	Yes, Your Honour.
MASON CJ: You have.

Miss Cox, are you appearing in one of these matters

or all of them?

MISS R. COX:  Yes. I think it is the last in your list,

Your Honour, S83 of 1990, West v Commissioner of

Police. There are several persons named there but generally it is the Commissioner of Police and the Sheriffs Officer. So, it is respondent 1, 4, 9,

12, 20 and 23. (of the State Crown Solicitors

Office)

MR WEST:  Your Honour, I have a copy of the index books

here. I think you should see them, Your Honour.

West(2)	13/12/91
MASON CJ: Yes, thank you. Mr West, you appreciate	that we

are not hearing appeals in these matters.	All we
are doing is hearing your applications for	special
leave to appeal in these four instances.

MR WEST:  Yes, Your Honour.

MASON CJ: So, would you briefly endeavour to explain to us

why we should grant special leave to appeal in

these matters?

MR WEST:  I think that is on the application for special

leave - for an extension of time and special leave,

Your Honour, on the seventy-sixth page - no, on the

seventy-fifth page, Your Honour.

MASON CJ: Of this index that you have just handed up?

MR WEST:  Yes, Your Honour.

MASON CJ: Well, that is the application for special leave

to appeal in No S 83. Now, can you tell us very

briefly why we should grant you special leave to

appeal?

MR WEST:  Yes, Your Honour. This whole matter relies on the

repealed Summary Offences Ac.t, Your Honour. The

vehicle was - there was some action taken by a

repairer who had me charged with stealing my own

vehicle in Casino in 1977, Your Honour. He claimed

he had a lien on the vehicle which he never had.

It was taken - oh yes, Your Honour, it was put into

the hands of the Consumer Affairs and legal action

was taken by the firm of solicitors who was Mitchel

Playford & Radburn who is the tenth respondent

there, Your Honour.

I took it back to the same court and it was

ruled "no jurisdiction" because it was in the hands

of the Consumer Affairs, Your Honour. In the

meantime, the vehicle was taken from me - stolen

from me, Your Honour: larceny, stealing and theft,

all involved trespass. There is an ombudsman's

report on that in that book, Your Honour. The

vehicle was sold too, Your Honour. That is

conversion, which is a criminal offence. It is on

page 8, Your Honour, of the index, the State

Ombudsman's report.

There is some mention on that report there was a loosely fitted quarter glass window in the

vehicle, Your Honour, but it was not; it was broken

by the guy who was towing the vehicle for the

police, a Mr Marsh.

GAUDRON J: But is the issue in this case not really simply

an issue of whether the Court of Appeal was right

in ruling that your notice of appeal to that court

West(2) 4 13/12/91

was incompetent and should have gone to a single

judge? Is that not the only issue at this stage?

MR WEST:  The issue at this stage, Your Honour, is the

vehicle was stolen, in the first place.

GAUDRON J: Yes. Well, we will assume all that for the

moment. You can only come here if there is a

decision made by a court and the only decision in

issue is that the notice of appeal that you took to

the Court of Appeal was incompetent, it should have

gone to a single judge.

MR WEST: Well, I paid for the Full Bench, Your Honour:

that is three judges.

MASON CJ: Yes, but the problem is you wanted to appeal from

a decision of the master, did you not?

MR WEST: Yes, Your Honour.

MASON CJ: Well now, the jurisdiction by way of appeal from

the master is exercised by a single judge of the

supreme court, not the Court of Appeal.

MR WEST:  I think this appeal is from the Court of Appeal,

Your Honour, on a motion dismissed.

MASON CJ: This application is, but the Court of Appeal said

you were wrong in appealing to it, you should have

appealed to a single judge of the supreme court.

MR WEST: Well, no, I paid for a Full Bench, Your Honour.

MASON CJ:  I know you did.

MR WEST:  There was an application. I was the applicant at

the time to have the Full Bench.

MASON CJ:	I know, but the Court of Appeal ruled that it did not have jurisdiction, that the appeal should have
been taken to a single judge of the supreme court. Now, you have got to endeavour to persuade us that
you have a reasonably arguable case that you had an
appeal to the Court of Appeal.

MR WEST: Appeal as of right, Your Honour?

MASON CJ: Yes.

MR WEST:  I have not got the Supreme Court Rule with me at

the moment but it would be appeal as of right,

Your Honour. It is in the Court of Appeal Rules.

I just have not got that with me either at the

moment, Your Honour. I do not know the number

because I have not got it with me. But it was an

appeal from a master to the Court of Appeal in New

South Wales which is the only court you go to and

West(2) 13/12/91

when you pay for an appeal that is to the Full

Bench.

MASON CJ: Well, it is not. The normal appeal from a master

is to a single judge of the supreme court.

MR WEST:  Yes, Your Honour, with the extension of time -

asking for an extension of time, and that judge

gives you the extension of time and you go into the

Full Bench. That is the way the rules run in the

supreme court, Your Honour. I just forget which

judge I appealed to for an extension of time on

that occasion. That appeal was dismissed as

incompetent anyway, Your Honour, so I appealed to

here.

MASON CJ:  ~hat is. _ght. You have to show us why the Ccur~

of Appeal was wrong in so ruling.

MR WEST: Larceny, stealing and theft all involve trespass,

Your Honour, as is on page 8 of the ombudsman's report, and 7, where it was ruled "no

jurisdiction", Your Honour.	On 9, I think it is,
Your Honour.	The action should never have been

taken as is on page 9:

We confirm that judgment was today set aside

in this matter. The magistrate marked the

file "no jurisdiction" pursuant to

section 19(1) of the Consumer Claims Tribunal

Act.

MASON CJ: Yes, but I must bring you back to this question:

the only question before us is whether you have an

arguable case to present that the Court of Appeal

was wrong when it said the appeal to it was

incompetent. That is the only question with which

we are concerned.

MR WEST:  Yes, Your Honour, Part 51 rule 2, I think it is,

of the Supreme Court Rules, Your Honour. Wait
until I just get it all together.	Even though an

appeal is lodged out of time, the appeal will

eventually be heard.

MASON CJ: Well now, can you say any more on that point?

MR WEST:  No, Your Honour, that was my right of appeal and

because of Part 51 rule 2 of the Supreme Court

Rules, even a notice filed out of time will

eventually be heard.

Your Honour, I think the whole matter to do

with this was that there was a paragraph attached

to the application for special leave. It is in

"Procedure", Your Honour.

West(2) 6 13/12/91

MASON CJ:  Now, Mr West, the position appears to be this:

under Part 60 rule 10, it is said:

An appeal shall lie to the Court from any

decision of a master, except in any case where

an appeal lies as of right to the Court of

Appeal pursuant to rule 17.

So, the question then is have you an appeal as of

right to the Court of Appeal under rule 17?

Rule 17 then provides:

An appeal shall lie to the Court of Appeal in

accordance with sections 101 and 103 of the

Act, subject however to the leave of the Court

of Appeal in any case to which subsections (2)

and (4) of section 101 apply, from any

decision of the Court in a Division

constituted by a master -

and then there are listed in subparagraphs (a) to

(f) various forms of proceedings. Now, the

proceeding heard by Master Malpass, in your case,

does not fall within the proceedings listed in

subparagraphs (a) to (f). Now, the result appears

to us to be that the Court of Appeal was without

jurisdiction in your case.

MR WEST:  I see.

MASON CJ: So, it appears that the decision of the Court of Appeal, in dealing with the appeal as incompetent,

was correct.

MR WEST:  I see. Well, I was relying on Part 51 rule 2,

Your Honour, where it says even though - that is in

New South Wales Supreme Court Procedure only.

MASON CJ: Yes, that is right. That is what we are looking

at.

MR WEST:  I just have not got it with me but I think it is

51, part 2, Your Honour - 52, part 1. Part 51,

rule 2 I think it is.	It is on the bottom of the
page anyway, Your Honour.	I am sorry I did not
have it with me.	I did not think I would need it.

I was relying on the application - the paragraph attached to the application where it said, "You

must appear - notice of appearance in 14 days and

serve the applicant."

MASON CJ: Well, Mr West, that seems to be the end of that

case and we really have no option but to make an
order in this case refusing your application for

special leave to appeal on the basis - - -

MR WEST:  Your Honour, excuse me for interrupting?

West(2) 7 13/12/91

MASON CJ: Yes.

MR WEST:  I was wondering - on the application, Your Honour,

for special leave on the second page: "Application

for an extension of time and application for

special leave", there is a paragraph:

NB: Before taking any steps in these

proceedings you must enter within 14 days

after service of this application enter an

appearance in the Office of the Registry in

which the application is filed and served,

serve a copy on the applicant.

I have received no appearance, Your Honour.

MASON CJ: That is beside the point.

MR WEST:  I thought it would be - it is a rule, Your Honour,

or was a rule.

MASON CJ: Well, maybe it is a rule but it does not matter.

We have come to the conclusion that the decision of the Court of Appeal was correct.

MR WEST:  I see, Your Honour. Application refused?

MASON CJ: Application refused.

MR WEST:  Could we have the Hancock one heard next,

Your Honour?

MR KEARNS: With costs, Your Honour?

MR WEST:  I will claim costs under "Litigant in Person",

Your Honour, 1975 Costs and Expenses Act.

MASON CJ: The application is refused with costs.

MR WEST:  Thank you, Your Honour. Could we have the costs

taxed, please?

MASON CJ:	No.
MR WEST:	You do not tax in the High Court?

MASON CJ:  No. We have made an order that the application

is refused with costs. Now, that is the end of

that matter as far as we are concerned, Mr west.

MR WEST:  Thank you, Your Honour. I was just wondering

about the paragraph attached to the application for

special leave.

Could we have Hancock v West? I did receive a

copy from Canberra, Your Honour, and on that copy

Mr Hancock was not included today so I did not

bring Mr Hancock's papers, Your Honour. I am not

West(2) 8 13/12/91

prepared for that one. Could I set another date

for that please?	I received that from Canberra a
little while back, Your Honour.	Mr Hancock is not
listed on that one.

MASON CJ: Very well, the matter will stand over generally,

Mr West.

MR WEST:  Thank you, Your Honour, that is the Hancock one.

Which one would we have a look at next,

Your Honour?

MASON CJ: Well, I think we may as well look at them in the

order in which they are listed, Mr West, so we will

look at the Forbes Shire Council case next.

MR WEST:  Thank you, Your Honour, I will just hand you up

the books.

MASON CJ: Miss Cox, you do not wish to remain?

MISS COX:  In relation to the particular matter now, the

Forbes Shire Council, perhaps I should just say

this:  I am here as a matter of courtesy for the

Commissioner of Police. The Commissioner of Police

has never been joined as a party to the proceedings

at any stage in the supreme court or by the High

Court and the fact that the Commissioner was named,

I thought I should come along for those reasons

only. But if I may be excused?

MASON CJ:  Certainly. We note what you say and you may be

excused from further attendance. Yes, Mr West?

MR WEST:  This one is an eviction during the repealed

Summary Offences Act, Your Honour: eviction

without an eviction order off Crown land. That is
the banks of a river, Your Honour, three chain each

side of any natural waterway is Crown land.

MASON CJ:

Now, you are appealing here, are you not, against

an order made by Mr Justice Priestley refusing you

an extension of time?

MR WEST:	No, Your Honour, dismissing my motion.
GAUDRON J:	You applied for leave to appeal out of time from an order which remitted the matter to the district
court, did you not?

MR WEST: Yes, Your Honour, as of right.

GAUDRON J: Well, you were out of time, so you were not as

of right.

MR WEST: This is property, Your Honour.

GAUDRON J: Yes, but you were out of time, were you not?

West(2)	13/12/91
MR WEST:	Your Honour, they stole my property and anything

to do with property in the High Court - 15 years

statute of limitations.

GAUDRON J: Yes, but you did not bring your appeal within

the time that you should have brought it, is that

not right, because you applied for leave to appeal

out of time, did you not?

MR WEST:  Application with an extension of time,

Your Honour, I think.

GAUDRON J: Yes.

MR WEST: Well, I was relying on the 15 years statute,

Your Honour, for the property. Anything to do with

property in the High Court:	15 years statute of
limitations.

MASON CJ: I do not know anything about such a statute.

MR WEST: Well, I do, Your Honour. Anything to do with

property is 15 years statute in the High Court. I cannot point it out to you, I have not got it with

me but I know it, Your Honour.

MASON CJ: Well, I am not aware of it. But the point is

this, is it not, that Mr Justice Sharpe transferred

your proceeding to the District Court from the

Supreme Court?

MR WEST: Yes, Your Honour.

MASON CJ:  And he did so because he was of the opinion that

the damages you claimed in the action would not

exceed $100,000 and therefore it was proper to

transfer it to the District Court.

MR WEST: Yes, Your Honour, but it was a repealed Summary

Offences Act in New South Wales, a criminal

offence.	I will just point out to you, on page 1,
Your Honour:
by Landlord and Tenant Summary Offences
amended by inserting section 63(2)(a)(iii),
the following paragraph:
a period exceeding 7 days if notice is given
on the ground specified in section
62(5)(d)(l) - -

there was no notice, Your Honour. It was Crown

land. It was my land. It was within the three

chain - three chain each side of any natural

waterway or 21 feet is Crown land.

MASON CJ:  Yes, but we are not concerned with that. We are

only concerned with the question whether

West(2) 10 13/12/91

Mr Justice Priestley was right in refusing your

application because you were out of time.

MR WEST: Justice Sharpe?

MASON CJ: No, Justice Priestley. You are seeking to appeal

from the order made by Justice Priestley.

MR WEST: In the Forbes Shire Council, Your Honour? No,

that was Justice Sharpe.

MASON CJ: Originally it was Justice Sharpe but then you

sought to appeal against his order.

MR WEST:  Yes, Your Honour.

MASON CJ: To Mr Justice Priestley, to the Court of Appeal.

MR WEST:  Yes, Justice Priestley, that was for the extension

of time, I think, Your Honour. No, I appealed from

Justice Sharpe, Your Honour. It is on the notice

of appeal.

MASON CJ:  Look, Mr West, we cannot really waste time. I

have pointed out to you that what you are appealing

against is the order made by Mr Justice Priestley

refusing you an extension of time. Now, that is

not the sort of order against which or from which

this Court grants special leave to appeal.

MR WEST:  Yes, I have it ·now, on 41, Your Honour. I would

have thought that would have been a right of appeal

too, Your Honour.

MASON CJ: Look, Mr West, we have spent enough time with

this case.

MR WEST: Yes, Your Honour. Application dismissed?

MASON CJ:  It is not a case in which this Court will grant

special leave to appeal.

MR WEST:  Okay, thank you, Your Honour, but there was a

paragraph attached to the application.

MASON CJ: The application is refused.

MR WEST:  We only have one left, Your Honour, that is the

defamation.

MASON CJ:  Now, this is the Thompson case?

MR WEST: Yes, Your Honour. It involves five pages, this

one, Your Honour. There was a caveat put on the

caravan park and the on-site caravans.	The caveat
was ignored and the caravans were sold,

Your Honour. There is a witness's statement on

page 1, Your Honour.

West(2) 11 13/12/91

MASON CJ: But here again you are appealing or seeking to

appeal from an order made by the Court of Appeal,

are you not?

MR WEST:  Yes, Your Honour, but that is my right of appeal

to appeal if the Court of Appeal refuses my right of appeal. Of course, I can go back to the Court

of Appeal, Your Honour, but I chose to come to your

Court.	The Court of Appeal will - Part 52 - 51, 2,
I think it is, Your Honour.	You just keep filing

motions in the Court of Appeal and your appeal will

eventually be heard. But that is in the Supreme

Court Rules, Your Honour. But I chose to come to

your Court.

MASON CJ: But you are seeking to appeal against a refusal

by the Court of Appeal to grant you leave to appeal

from a decision of Mr Justice Hunt?

MR WEST:  Yes, Your Honour. I will just explain that to

you. Mr Justice Hunt ordered I have possession of the caravan park and the caravans, the on-site

caravans.	I had 14 days to go into the Court of
Appeal.	I had the appeal filed within 14 days but

I had not received the judgment from Justice Hunt's associate or whoever types them up, Your Honour, so

after that I just kept appealing through to your

Court, the High Court, Your Honour. I had

possession of the caravan park. Justice Hunt gave

me possession of the caravan park and the 20

on-site caravans, but on a closer check - - -

GAUDRON J:  But did not the Court of Appeal say that what

Mr Justice Hunt had done was not the sort of thing

about which you could appeal?

MR WEST: Well, I appealed as of right, Your Honour.

GAUDRON J: But Mr Justice Hunt has to make an order before

you can appeal.

MR WEST:  But to go from Justice Hunt, who is a single judge

in the supreme court, if I wished to appeal, I have

to have my appeal in in 14 days into the Court of

Appeal.

GAUDRON J: Yes.

MR WEST:  Rule 52, 1 and 2, I think it is, that the appeal

will eventually be heard.

GAUDRON J:  If there is an order from which you could appeal

and the Court of Appeal said that whatever it was

that had been done, it was not an order.

MR WEST:  I thought I heard Justice Hunt say - of course,

the motion I filed was asking for the possession of

the caravan park and the caravans.

West(2) 12 13/12/91

GAUDRON J: Yes. But you had brought an action for

defamation.

MR WEST:  Yes, Your Honour.

GAUDRON J: And then you started talking about possession of

the caravan park, is that not so?

MR WEST:  Yes, Your Honour, because I had not been made an

offer.

GAUDRON J: Yes, but in the same action, and all

Mr Justice Hunt said was, "Well, look, we are

concerned with the defamation action".

MR WEST:	I beg your pardon?
GAUDRON J:	Mr Justice Hunt said, "But we are only concerned

with the defamation action", is that not what he

said?

MR WEST:  Well, that was a bit far back, Your Honour. I

have not checked that one. I think the last motion

I filed was to join other parties plus ask for

possession of the caravan park. Justice Hunt gave

me possession of the caravan park. On a further

check, the caravan park did not belong to Thompson

and Smith. It was in the same predicament I am

having with half of Sydney which belongs to me now.

It was not owned by them so I could not take it.

So, the on-site caravans and the caravan park were no good to me. So, I had to - I just appealed it

straight to the Court of Appeal and then the

application was dismissed in the Court of Appeal

and then I came to your Court, Your Honours.

MASON CJ:  Now, Mr West, the position is this, and it

appears to be quite plain: the Court of Appeal

refused leave to appeal against what happened in

Mr Justice Hunt's court in February 1990 or
1 December 1989.	Now, that appears quite plainly

from page 7 of the application book and one of the

grounds taken by the Court of Appeal was that no

operative order was made by Mr Justice Hunt.

Now, again, it is not our practice to grant

special leave to appeal against orders refusing

leave to appeal in the Court of Appeal. They are

basically interlocutory decisions and it would only
be in the rarest case that we would contemplate

granting special leave to appeal in such a case.

MR WEST:  I see, Your Honour. There was also an application

on that - - -

MASON CJ: So, in those circumstances, Mr West, we have no

alternative but to refuse the application.

West(2) 13 13/12/91

MR WEST:  I see, Your Honour. Well, I can use 52 1, I think

it is, and go back to the Court of Appeal.

MASON CJ: Well, I doubt that and we cannot tell you what

you ought to do. The fact is that this application

for special leave to appeal is refused.

MR WEST:  Thank you, Your Honour. You have got all the

books, have you not, Your Honour? Nine books I

think I gave you, Your Honour.

MASON CJ: Yes, those books can be returned to you.

AT 3.45 PM THE MATTER WAS ADJOURNED SINE DIE

West(2) 14 13/12/91