West v Hawes

[1991] HCATrans 278

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S49 of 1990

B e t w e e n -

RAYMOND STANLEY WEST

Applicant

and

LINDSAY HAWES and COMMERCIAL

UNION ASSURANCE COMPANY OF

AUSTRALIA LIMITED

Respondents

Application for special leave

to appeal

BRENNAN J
DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 OCTOBER 1991, AT 4.48 PM

Copyright in the High Court of Australia

West 1 4/10/91

MR H.J. MARSHALL:  May it please the Court, I appear for the

respondent. (instructed by Henry David York)

BRENNAN J:	You are Mr West?
MR R.S. WEST:	Yes, Your Honour, appearing for myself, a

litigant in person.

BRENNAN J: Yes, Mr West?

MR WEST: This should not take very long, Your Honour.

BRENNAN J: There is an application - I presume you have

it - which is - - -

MR WEST:  Yes, it is in the back of that book, Your Honour.

There is a motion on the front and a supporting

affidavit. Practically, the whole history of the

matter is in that book you have in your hand,

Your Honour.

BRENNAN J: Yes. Well, Mr Marshall has an application that

your application be dismissed for want of

prosecution. So perhaps we should hear that first.

MR WEST:  Well, it is up to the Court, Your Honour. Thank

you.

MR MARSHALL: In respect of that application, I am

instructed not to seek to move on that.

BRENNAN J: Very well.

MR MARSHALL: There is a short matter of a preliminary

nature. It relates to the notice of appearance

filed by the respondents. It appears, upon receipt

of the letter from the Registrar, that the

solicitor who signed the original notice of

appearance was not on the High Court roll. That

was a mistaken belief on his part that he was. He

has now rectified that and I am instructed that on

to make the original notice of appearance defective	23 September he signed the roll. That would appear
on its face and I would seek the Court's leave to
file in Court a fresh notice of appearance and I would seek the Court's leave to enlarge the time
upon which it may be filed.

BRENNAN J: Yes, that may be done, Mr Marshall.

MR MARSHALL:  Thank you, Your Honour.

BRENNAN J: Well, if you are not moving to strike it out we

will hear what Mr West has to say.

MR MARSHALL:  Yes.

West 2 4/10/91

BRENNAN J:  Now, Mr West, you heard the previous application

by a litigant in person.

MR WEST:  Yes, Your Honour.

BRENNAN J: And you understand that applications for special

leave to appeal to the High Court cannot be

presented by litigants in person unless the Court

allows them to do so.

MR WEST:  I see, Your Honour.

BRENNAN J: And before we would allow you to do so, we would

need to be satisfied that there is some major

question of law which you are capable of

identifying and putting before us.

MR WEST:  Yes, Your Honour. If you look at page SA,

Your Honour, a letter of liability and

Justice Flannery's judgment in the district court

at Leeton on page - - -

DAWSON J:	We have read that.
MR WEST:	Yes, Your Honour, and then, of course, on page 1

and 2 there is the motion and the affidavit in
support. According to the rules, there was a

paragraph attached to the application for leave,

Your Honour, that the Court must be notified and

the plaintiff should be served within 14 days.	It
is on the bottom of page 10, Your Honour, take
notice, on the application for special leave.

BRENNAN J: Page 10?

MR WEST:  Yes, Your Honour. It is on page

DAWSON J: Which book? The one you handed up today or the

one that we had previously?

MR WEST:  The one I just handed you, Your Honour. It has

got the blue - - -

DAWSON J: They have both got blue but it has - - -

MR WEST:  Yes, yes, well, it is the same as this one,

Your Honour.

BRENNAN J:  My page 10 has a heading on the left-hand side:

In the Supreme Court of New South Wales

Sydney Registry.

MR WEST:  Page 14, I am sorry, Your Honour. I was looking

at the tenth line numbered down in that page, I am

sorry.

West	4/10/91
DAWSON J: And then on page 15 there is an affidavit.
MR WEST:	Yes, Your Honour, on page 15 there is an

affidavit.

DAWSON J:  Does that set out the issues that you want to

raise?

MR WEST:  Yes, Your Honour. That is:

Breach of contract is a Tort if a party to a

contract breaches its terms, the innocent
party is entitled to rescind the contract and

or to sue for damages.

That is all I have to put, Your Honour.

BRENNAN J:  Yes. Thank you, Mr West. We need not trouble

you, Mr Marshall.

MR MARSHALL:	May it please the Court.
BRENNAN J:	The Court has read the papers in this matter, both the original application book that was filed
by Mr West and the application book which he has handed in today and which contains a number of
additional pages.

Having read that material, the Court does not

see anything in the material which justifies the
grant of special leave to appeal to the High Court
of Australia. Accordingly, the appropriate order
for us to make is that special leave should be

refused.

MR WEST:	Thank you, Your Honour.
MR MARSHALL:	I am instructed to seek an order for costs in

respect of the application.

BRENNAN J: Are you, Mr Marshall?
MR MARSHALL:	For what it may well be worth.
MR WEST:	I will claim costs as a litigant in person,

Your Honour, the 1975 costs and expenses Act

BRENNAN J:  Mr Marshall, on your part there is a notice of

motion.

MR MARSHALL: That notice of motion is ill conceived.

TOOHEY J: That might attract an order for costs.

DAWSON J:  You would not really persist in your application,

would you, Mr Marshall?

West 4 4/10/91

MR MARSHALL:  I think in the light of what Your Honours have

said, I withdraw the application for costs?

BRENNAN J: Very well, there will be no order as to costs.

AT 4.56 PM THE MATTER WAS ADJOURNED SINE DIE

West 4/10/91