Weston v Connor

[1998] HCATrans 463

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M17 of 1998

B e t w e e n -

MICHAEL WESTON

Applicant

and

PETER JULIAN CONNOR

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 DECEMBER 1998, AT 3.36 PM

Copyright in the High Court of Australia

MR M. WESTON appeared in person.

MR G.K. MOORE:   If the Court pleases, I appear on behalf of the respondent. (instructed by Constable Connor & Co)

GLEESON CJ:   Yes, Mr Weston.

MR WESTON:   I have done the same within the previous matters.

GLEESON CJ:   This is an application, I think, Mr Weston, to appeal against a decision of Justices Charles, Callaway and Batt, is that right?

MR WESTON:   That is correct.  I will try and take you through some of it, your Honour.  Basically what was pleaded:  Mr Connor sued me pursuant to a mortgage retainer and costs agreement, or whatever, in relation to a solicitor/client relationship.  I pleaded conspiracy that he put together between himself and other parties involved in this.  It is not a very popular topic.  I believe that the pleadings were proven by Mr Connor’s admissions, that is the pleading of conspiracy.

What the trial judge and the Court of Appeal judges have done is to say the thing was absurd.  I say the reasons of both the trial judge and the Court of Appeal were absurd for one simple principle in law, and that is the principles that have been enunciated in the Brickenden situation, and the principles that underlie a fiduciary duty.

It does not matter what a respondent or a plaintiff says in relation to a prescribed fiduciary duty where there is evidence that there has been a failure to disclose, and that is set out in the words of their Honours Brennan, Gaudron, McHugh and Gummow in the decision in Maguire v Makaronis, at page 471.  It says, Brickenden could not - it basically says that – what I am saying is, Connor:

could not:

“be heard to maintain that disclosure would not have altered –

What I am basically saying is that nobody can say what I would have done if I had been told exactly what was going on.  The trial judge can write a 1,000 pages, the Court of Appeal can write 10,000 pages, but they cannot say what I would have done if I had been given 100 per cent of the information.

If we go back to June 1994 when it all happened, a differential point between Maguire v Makaronis and Connor v Weston is this, the

Makaronises wanted the money.  There is a file note of Mr Connor’s in evidence, it is in the application book, that I wanted the whole thing called off.  I did not want to borrow the money.  The proceeding with the borrowing was only obtained by Mr Connor’s failure to disclose and his deception.  If Mr Connor had disclosed what he knew on 4 June 1994, we could have gone to the County Court the next day to have that shire judgment set aside.  It was only a summary judgment.  It was not a trial judgment.  It would have taken two or three days to get it on for hearing.  An emergency thing, we could have had it on virtually the next day.  The shire would not have got its money.  The blackmail that was contained in the shire’s letter from Mr Melville of 1 July 1994 would have been a sufficient point to reopen things.

As a result of that breach of fiduciary duty I have suffered a horrendous loss.  It is a loss that I believe somebody is going to make up.  It is through no fault of my own.  There has been no finding of fact right through this thing, other than the grounds that I am challenging the trial judge in the Court of Appeal on.  They could have admitted that evidence.  Mr Connor in one trial on oath has said he did not think anything had not been given to me, and on oath in the next trial he said, “Yes, I never showed it to anybody else”.  It is there in the application book in front of you.

That is what this application is all about, that Mr Connor has committed perjury.  The Court of Appeal know it.  They would not permit the evidence, the fresh evidence, to be admitted at the appeal.  That is, that I say is evidence that would have totally turned the situation, and the reason why there should be a grant of special leave is because this case is distinguishable from Makaronis, because of the fact that it is quite clear in Makaronis they wanted the money no matter what.  They wanted their chook farm.

There was hard evidence before both the trial judge in the Court of Appeal, on 4 July 1994, that Connor was instructed not to proceed with the loan.  You have seen my difficulties here today.  I acted as a gentleman towards Mr Connor.  I do not think he acted as a gentleman towards me.  Thank you your Honour.

GLEESON CJ:   Mr Moore, could you state in a summary form the grounds of your opposition to the application.

MR MOORE:   Yes, if the Court pleases, against the special leave point, there is no sufficient reason to doubt the correctness of the decision below in so far as Mr Weston raises the issue of bias.  He raises that without factual basis, without foundation.

GLEESON CJ:   What about the matter of fresh evidence or new evidence?

MR MOORE:    I am sorry, your Honour.

GLEESON CJ:   He referred to a matter of fresh or new evidence.

MR MOORE:    That is not addressed in either the application or the outline of argument.  There is no factual basis in the submission of the respondent for that allegation.

GLEESON CJ:   Yes, thank you.  Mr Weston, anything in reply?

MR WESTON:   I would like you to look at both documents, both pieces of the transcript and read them, your Honour.  There clearly was evidence that came out in the next – that is the Hartnett matter, that is the last matter you will consider today.  That was new fresh evidence after the trial judge that I put in affidavit form and brought to the Court of Appeal and they refused to look at that fresh evidence.  And, basically, what I say is that once that fresh evidence was admitted, and that there was proven beyond any reasonable doubt that Mr Connor had committed perjury in one of the other pieces of evidence he gave, that the judgment against me could not be sustained.

GLEESON CJ:   Where in the application papers in this matter do we see that fresh evidence?  Is it what is referred to at 136 and 137 of the application book?

MR WESTON:   It is what is referred to at 131, I believe, your Honour.  That is the transcript in the Hartnett proceeding, and I have a copy here with me of the transcript in the Connor proceeding, and I would seek leave to hand it up to you.

GLEESON CJ:   Is it a single sheet of paper?

MR WESTON:   About two or three.

GLEESON CJ:   All right, hand that up.

CALLINAN J:   Mr Weston, if you look at page 136 of the record.  It is the evidence that you just referred to that is being discussed there, is it, by the court?  Have you your application book there?

MR WESTON:   Yes, I just have not had it bound, that is all.

GLEESON CJ:   Have a look at page 136, line 19, of the application book, where reference is made to two pages of transcript.  Is that the same evidence that you are now telling us about?

MR WESTON:   I believe so.

GLEESON CJ:   Thank you.

MR WESTON:   No, but they were not – you see, what they have done there is they have referred to them as being in the appeal book, that is evidence in the Connor proceeding.  Unless I have made a mistake in the pages that were exhibit “MWD”, what those two pages of transcript were, transcript of the Hartnett proceedings, not the Connor proceedings.  What they have referred to in there as being pages of the Connor proceeding and this is - they did not have them before them and this is one of the little bits of bias, or whatever you would like to call it, or whether it is an error or a mistake, they have referred to them as being the two pages that I am about to hand up to you that were in the Connor appeal books.  What you have in front of you are the two or three pages that have come from the Hartnett proceeding, and it is in ‑ ‑ ‑

GLEESON CJ:   Let us not prevent you from handing up the document up.  You hand the document up.

MR WESTON:   You will have to excuse me for one moment while I find them, your Honour.

GLEESON CJ:   I think you said that if we compare what is on page 131 of the appeal book with these sheets of paper, we will see a difference.  Could you point out the difference to us please?

MR WESTON:   Yes.  The ones I have handed up to you, if I could take you on to page 256 of them.  I am just trying to save you reading the whole - I am sorry, your Honours, I cannot find the bit I am looking for.  There is a bit in it that says Mr Melville - whether it is going to be on page 258 and I have not photocopied it - - -

CALLINAN J:   I think if you look at page 133 in the book - - -

MR WESTON:   Yes, I was looking at the wrong pages, your Honour.  I am sorry, I get white-outs.

CALLINAN J:   Page 133, might be dealing with the same topic - - -

MR WESTON:   Yes.

CALLINAN J:   - - - as at page 256 in the documents you have handed up.  Is that ‑ ‑ ‑

MR WESTON:   Yes, that is the same document we are talking about.

CALLINAN J:   Both are concerned with whether, in effect, you were being blackmailed in some way by ‑ ‑ ‑

MR WESTON:   That is what came out.  That is what I was not told about.  But the point I am trying to make is this that, as you said, on page 133, where you come down to, “Mr Weston:  Well, in view of your” – the answer that you get in line 11 ‑ ‑ ‑

GLEESON CJ:   Yes, we have read that.

MR WESTON:  

I never informed anybody about this ridiculous letter.  In fact, you held on to it for nearly two years before I found out about it, didn’t you?

I forgot about it the instant I read it –

and he goes on to say:

It’s a ridiculous letter…..it’s just Andrew Melville being away with the fairies.

GLEESON CJ:   Yes, we have read that.

MR WESTON:   What I am trying to get across to you in this whole thing, was the fragility ‑ ‑ ‑

GLEESON CJ:   I am awfully sorry, you were saying that that is contradicted by some evidence in the sheets of paper you handed up, and I am giving you the opportunity to show us in those sheets of paper where it is contradicted.

MR WESTON:   It is contradicted in that Mr Connor said there that he did not think he had withheld anything.  He did not know, is basically what he said.  And what he has said later on, he has made a categorical admission that he did not show me that letter.

GLEESON CJ:   Can you please point to the part in the transcript that you have handed up which you say is different from the evidence on page 133.

MR WESTON:   Yes, page 255, line 14.

GLEESON CJ:   Yes, thank you.

MR WESTON:   “Do you recall sending that letter too?”  “No, I do not recall sending any particular letters to you.”

GLEESON CJ:   Now, what is the difference between that evidence and the evidence at page 133?

MR WESTON:   He has admitted that he has not sent this particular one to me.

CALLINAN J:   He says he forget about it, does he not, at line 14?

MR WESTON:   Yes, but I take you back to his letter of 8 April and this is where the breach of fiduciary duty comes from.  He took over a solicitor negligence theme.  He continued with it on the basis, the assurance that he gave me, that he knew the trouble I had had with the solicitors before, and that he would give me every document that came into his possession.  I was in the office the morning that letter arrived.  He did not even have to put a postage stamp on it, he could have handed it to me, but he knew what I would do when I saw the conditions that were being laid down by the shire.  We were not only struggling to pay their illegal warrant off.  They just did not want that paid.  They wanted - they were trying to obtain an agreement that we would never make a claim for further – that is what the letter says.  It is exhibited in the application book.  I am sorry, it might not be, your Honour.  It is in the shire proceeding one.  I am sorry, it is there, I think, at page 130.  It is on line 23.

GLEESON CJ:   Yes, thank you Mr Weston.

MR WESTON:  

Some form of acknowledgment in suitable format to the effect that no further claim –

might apply.

GLEESON CJ:   Thank you Mr Weston.  Take a seat now, thank you.

In this matter the applicant seeks special leave to appeal from a decision of the Court of Appeal of the Supreme Court of Victoria.  The Court is of the view that there is insufficient reason to doubt the correctness of the decision of the Court of Appeal to warrant a grant of special leave and the application for special leave is refused.

Do you seek costs, Mr Moore?

MR MOORE:   Yes, I do, your Honour.

GLEESON CJ:   Do you resist that, Mr Weston?

MR WESTON:   Yes, on the same basis as I stated in the last one.

GLEESON CJ:   The applicant must pay the respondent’s costs of the application.

AT 3.58 PM THE MATTER WAS CONCLUDED