Weston v Bannister

[1998] HCATrans 462

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M46 of 1998

B e t w e e n -

MICHAEL WESTON

Applicant

and

JOHN BRUCE BANNISTER and JUSTIN JOHN HARTNETT

Respondents

Application for leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 DECEMBER 1998, AT 3.58 PM

Copyright in the High Court of Australia

MR M. WESTON appeared in person.

MR J.J. HARTNETT:   If the Court pleases, I am representing the respondents.  (instructed by Price Higgins)

GLEESON CJ:   Mr Weston, this is an application for leave to appeal against a decision of Justice Gaudron of this Court, is that right?

MR M. WESTON:   That is correct.

GLEESON CJ:   Yes, Mr Weston.

MR WESTON:   I have done the same as in the previous matters, your Honour.

Basically, I believe that Justice Gaudron, in her decision, did not address the issue that was raised in paragraph 9, I think it is, of my affidavit in support, and that is basically the statutory obligation that the Court had to, and the reasons they gave for dismissing that application.

It is my contention that the key word in this is probably “preclude”.  That is in the reasons that Justice McHugh gave for declining the grant of special leave.  Justice McHugh took part in the Carson v John Fairfax, and the Smith Kline French Case.  It was a unanimous decision of the entire High Court, previous to your Honours’ appointments.  I am basically not pursuing the allegations contained in the affidavit of some sort of bias.  What I am just saying is that Justice McHugh has made some sort of slip or an error in saying that the situation was precluded because he took part in that decision where the finding was that nothing is prescribed; nothing is exempted; and there is no power of the High Court to do either of that.  That is found in that Smith Kline decision on the very last page of it.

What I am basically saying to you is that the way Justice McHugh disposed of my application was not open to him.  If he has proceeded in that manner – I hate making the allegation, but what happens when a trial judge says, “I know there cannot be any review of my findings of fact”.  He sits in one of his last cases on the Bench, as Justice Southwell did.  I think he retired the next week or several weeks later.  As I have said in what I have put before you in writing, he identified what the problem with it was, what the fraud was, and what the actual fraud on the part of Mr Hartnett was – that he knew the money was not being advanced to allow me to continue the litigation and recover the $130,000 in costs from Mr Adams or the Solicitors’ Liability Committee.  He knew it was being advanced so that the litigation could be terminated.

As a solicitor, he should have inquired as to what was going to be the effect on his security on my ability to pay his loan in that different set of circumstances that operated after 30 June 1994.

I have put there - and I could take you to the transcript, but I do not believe I have brought it with me, but Justice Southwell said it was not – Mr Hartnett was not being properly scrutinising the thing in advancing the money in those changed circumstances.  He knew that I was facing servicing something in the vicinity of $700,000 instead of 450 or 500.

As I was trying to put, before Mr Justice McHugh cut me off with the red lights, and he did not let me finish like you gentlemen have allowed me to finish today, Mr Hartnett made no inquiry – he knew that the thing was in difficulties.  He knew the difficulties.  As a prudent solicitor he should not have advanced the money.  As an experienced solicitor he knew the difficulties I would have in proving actual fraud against him once he got the mortgage registered on my title.

I believe Justice McHugh could see what I was coming to.  I was not given sufficient time to finish.  I believe it is a situation where there should have been a grant of special leave because not only was there the point of whether the mortgage had been obtained by actual fraud, there was also the point what would have to happen about restitution in that situation.

I say that on the finding in the Autodesk - that some of the principles enunciated in the Autodesk Case, that if the Court has made a slip or an error in that situation and there has been an injustice done, then you have the power to reopen it and let me put what I wanted to put, and also cover this situation where somewhere along the way there may be an erroneous finding of fact.  Thank you, your Honours.

GLEESON CJ:   This is an application for leave to appeal against a decision of Gaudron J in this Court, given on 27 May 1998.  Nothing that has been advanced in support of the application casts doubt upon the correctness of her Honour’s decision, and the application for special leave to appeal is refused.  Is there an application for costs?

MR HARTNETT:   There is, your Honour.

GLEESON CJ:   Do you resist that, Mr Weston?

MR WESTON:   Yes, your Honour.  I think that Mr Hartnett should expand on his application on what basis it is put.

GLEESON CJ:   Well, it is put on the basis that his client has been brought to Court to resist your application.

MR WESTON:   I understand that, your Honour, but in the previous hearing it was put on the basis of the contractual obligations in law and Justice McHugh did not accept that.

GLEESON CJ:   This is your opportunity to say anything further you want to say in resisting the application for costs.

MR WESTON:   Well, the order should make it clear that it is in the same terms as Justice McHugh made the order, that is, I think, it is - - -

CALLINAN J:   It will be, Mr Weston.  His Honour rejected specifically an application for costs on a solicitor and client basis and there has been no application for costs on that basis here.

MR WESTON:   I think the previous one was on an indemnity basis.

CALLINAN J:   It was, but it is not, as I understand the application, now.

MR WESTON:   I just think that the order should state clearly that the costs is ordered on the party/party basis.

GLEESON CJ:   The order of the Court is that the application for leave to appeal against the decision of Gaudron J is refused.  The applicant must pay the respondents’ costs of the application.  The consequence of that order will be that the costs will be paid on the ordinary party-and-party basis.  There is no order for solicitor and client costs being made.

AT 4.13 PM THE MATTER WAS CONCLUDED