Weston v Indigo Shire Council

[1998] HCATrans 464

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

MelbourneNo M29 of 1997, Nos M47, M48, M49 and M60 of 1998

B e t w e e n -

MICHAEL WESTON

Applicant

and

INDIGO SHIRE COUNCIL (formerly the President, Councilors and Ratepayers of the Shire of Rutherglen

First Respondents

and

PATRICIA MARY WESTON

Second Respondent

Applications for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 DECEMBER 1998, AT 3.00 PM

Copyright in the High Court of Australia

MR M. WESTON:  I appear in person, your Honour.

MR A.P. MELVILLE:  If it please the Court, I appear on behalf of Indigo Shire Council.  (of A.P. Melville)

GLEESON CJ:   Yes, thank you very much.  Just give me a moment while I check something.  I should note that I have a certificate from the Deputy Registrar to the effect that in matters M29 of 1997, M47 to M49 of 1998 and M60 of 1998, she has been informed by Patricia Mary Weston, the second-named respondent in matter M29 of 1997, that the second-named respondent will abide by the decision of the Court save as to costs.  She has also been informed by Patricia Mary Weston, the second-named respondent, that each of the matters numbered M47, M48, M49 and M60 of 1998, that the second respondent will abide the decision of the Court save as to costs.  Yes, Mr Weston?

MR WESTON:   Do I get my 20 minutes for the five ‑ ‑ ‑

GLEESON CJ:   You get 20 minutes for the first five.

MR WESTON:   Your Honours, because there are a number of things, what I have tried to do is type what I have wanted to say.  If it is of any assistance in all four proceedings, I have got copies that I could hand to you so that you could follow it if that ‑ ‑ ‑

GLEESON CJ:   All right, by all means do that.  Just give us a moment to read it.

MR WESTON:   If I read it and follow it so that some of it gets on to the transcript that will ‑ ‑ ‑

GLEESON CJ:   Very well.

MR WESTON:   These are cases where it is submitted that there should be a grant of special leave because the general and public importance of the issues.  What I have not put in there – planning at some stage has or will touch all our lives.  I think there are six principle points of special leave.  The first of those is the validity of the Tribunal’s orders.  The second is the exercise of discretion of the Court of Criminal Appeal in Victoria to deliver justice, and that is what this application is primarily about, to overturn the refusal to allow the leave to appeal or the continuation of the appeal.  The third special leave point is, this series of cases, I believe, contains the action of a public statutory authority that was either malum in se or malum prohibita.

The fourth point is the actions of the respondent solicitor in aiding and abetting the actions of a public authority which were malum in se and malum prohibita.  The sixth point is the correction of injustice that has been brought about by the breach of one of the applicant’s solicitors fiduciary duty to the applicant.  If I may go back to the points I have made under the first item, that is, the validity of the Tribunal’s orders?  I believe it is quite clear from Hansard - and I have provided you with a copy of the Hansard of what was debated in the Victorian Parliament about the Planning Appeals Act -  the Act provides the first thing that happens is parties bear their own costs.  If the Tribunal feels it is justified, they may make an order on costs.

Section 58(3) provides a reverse situation for costs.  The principle underlying the award of costs in the Tribunal, from what appears to be in Williams under the local government pleading sections is – it is the behaviour of the parties before the Tribunal as to whether there will be an award of costs or not.  It does not matter who wins and I basically say the order for costs was made without any jurisdiction to do it.  It is quite clear from the reading of Hansard that it was Parliament’s intention that if there was going to be an award of costs, there had to be a finding that the claim was brought by myself and my former wife, vexatiously or frivolously.

That has not happened.  There is nothing in the Tribunal’s final determination that we have acted vexatiously or frivolously in bringing the claim.  If the order depends on a finding of fact that we have, and I say it does, that we have acted vexatiously or frivolously, we have not been given an opportunity to respond to that allegation.  This was an administrative decision, particularly the costs order.  It has been made without our right to be heard.  We were denied natural justice.  The Tribunal is bound by section 25 of the Planning Appeals Act by the rules of natural justice.  That is now a long established principle in cases such as FAI Insurance v Winneke (1951) CLR, Annetts v McCann.

There is a large body of authority now that basically says that if a person is not granted the right to be heard in an administrative decision, that decision is void and my submission is that certainly the costs order of the Tribunal is void.  I would then go on to the remainder of the Tribunal’s decision.  I say that the findings of fact are internally inconsistent.  I say that the section 58(3) decision was completely wrong.  My wife and myself made a decision to try and stop all this litigation by paying the Shire the costs that were awarded if we were given time to do it.  I believe we had an agreement with Mr Melville that that was going to happen.  The next thing we heard was the sheriff knocking on our door with a warrant of seizure and sale of the farm.

I have set out in my summary what I perceive to be some of the major delays that have occurred in this situation.  One of the principle delays was the withholding of vital material from me by my former solicitor, Mr Connor.  That was a delay of approximately 18 months.  At about the time I discovered that material, I became very, very seriously ill.  I was just rescued from dying and that is about all, and it has taken me a large length of time to get over that and during that time I have had the problems of family law litigation with my wife, litigation by Mr Connor, the Shire and things – it has been an overwhelming load.

I say that the delay was properly explained before the Court of Appeal and that is in the first of the applications to this Court.  The other four applications were initiated because when I looked at the criteria for a grant of special leave, one of them was that I had to exhaust all the process in the court below.  In February this year, there was documentation that I became aware of that Mr Melville was interested in my property, whether the leasehold or whatever.  That was one of the instigators of these four fresh applications this year.

I go on to point three and that is the malum prohibita and the malum in se contentions or allegations.  These matters started out with one of the eminent solicitors in the water field.  When you engage a person like that you should not have to go and check every piece of legislation, everything he tells you, or, for that matter, if you engage any solicitor you should not have to go and double check.  You are engaging them to represent you so that you can get on with your own job, not have to check up on them.  But over the period of time, in the things that are related in these other matters, I always suspected that there was mala fides in this situation with the Shire and I looked it up in the dictionary one day and I found malum in se and malum prohibita, and about this time last year it appeared to me that those applied.

And that, only about this time last year – yes, it was December 15, I think – there was an application made to the County Court to set aside the summary judgment in these things and to seek an order from the court for the repayment of the money from the Shire.  The whole matter would have ended there if the judge had seen the controversy of the Tribunal’s order, the invalidness of it.  The principle point that I believe is either malum in se or malum prohibita is that the Shire was ordered by the Tribunal to disclose everything, and I take you to the point in the Jamieson Case.  It is Jamieson v The Queen and I have provided you with a copy of it.

The Jamieson Case basically revolved around the immunity from criminal prosecution for things that are put in evidence during a trial or proceedings.  But, their Honours who delivered the principal judgment, I believe, left open a window where circumstances could arise where that immunity was not available and I say this is such a case.  There was a statutory instrument invoked by the Tribunal in the giving of the order that at the compulsory conference everything be disclosed.  In its defence, the Shire said that they were their roads, they made an admission and, basically, what I am saying is in coming along later and saying that they are not their roads, there has been a deception.  That they have put forward a false defence initially, or brought a false defence along later.

But, where an omission of facts are made, I cannot take you to any particular system of the court thing, but I would say that, in justice, they cannot then be withdrawn.  If that fact had been disclosed, that they were not the Shire’s roads at the compulsory conference - the costs in this matter were $1200 at that stage, we simply could have – there was no point in continuing suing the Shire if the Shire had said, “They are not our roads”, at the start.  Basically, what this is all about is that the costs have risen from $1200 to about $120,000.  And, basically, that act of deception was made to obtain the sale of my property, or possession of my property.  There was a motion passed by the Shire that they would buy my property at the sheriff’s sale.

I go on from those two points – that point of malum in se and malum prohibita, to the involvement of the Shire solicitor, and what has alerted me to this is the recent decision in the Flower & Hart v White Industries Case, and I am not making reference to anything that involves your Honour Justice Callinan, it is simply a situation where some of the previous cases have been listed and I am picking up on one of those items, and that is basically this, that one of the duties of a solicitor – he has a duty to his client but he also has a duty to the court system, and there is one passage there that – up around page 86 or 87 on the copy of the case that I have got that basically says, “A solicitor must also filter some of the work that is coming forward to the court”.

What I say in this, and I have said there in point 4.1, Mr Melville knew about it – he prepared the defence, he knew about the admission that they were the Shire’s roads.  When the Shire has given him instructions later on to come along and say they are not the Shire’s roads, well, he had a duty of care to the Tribunal and court system to say, “Well, look, we have admitted that they are our roads, we cannot do this”.  That was not done, and they have waited until the hearings have run for five days before they have done it.

I take you to the next matter and that is the matter in relation to my arrest under the Mental Health Act in February 1992.  There is a letter written under Mr Melville’s hand.  It is at page 318 of the application books.  Mr Melville has said there:

Mr Weston stopped his vehicle immediately in the path of the oncoming Council grader.  Fortunately the grader operator was able

to stop in time to prevent an injury to Mr Weston’s child who was a passenger in his car.

Compare it to the evidence that was given when I stood trial on the matter.  A criminal charge that carried a 10-year mandatory gaol term, “I did not think of it at the time”.  Did you report the incident of the sixth of the second to the police?  No.”  Mr Melville was thoroughly aware of the facts of that day and in that letter he has conveyed them to the Tribunal to influence their decision on costs – that the situation up there was getting out of hand and that something had to be done to resolve it quickly. 

Those charges were one of the principle reasons of the delay in the application for leave to appeal out of time in 1992, I think it was.  Basically, I have set out that – if I was put in gaol for 10 years my wife and two young children could not have run that farm.  We had to – the section 58(3) application was heard during that period of time.  If we had been successful on the section 58(3) matter and got some reversal of the costs, even if the costs were left – each party bearing their own costs.

It was the costs that tipped this thing over the brink and both Justice Marks and Hayne – they did not take account of the seriousness of those charges.  That once we had had the section 58 hearing, we had to then concentrate on me getting off that 10-year gaol term which was dismissed on the basis that there was no evidence to support the charges.  The sixth point in the whole – have I missed – I think I have covered point 4 fairly, to some extent, in the malum prohibita part of it and point 6 – and this is where material is withheld from me for 18 months by my former solicitor, Mr Connor.  There is nothing I can do about that, your Honour.  As soon as I found out about it and became well enough to do something, I did.

There is a limit to what any human being can do in this whole thing and I think there have been actions taken in this that well and truly overwhelms me.  I say it is a suitable vehicle for a grant of special leave for the simple reason that you will never see circumstances like this again.  I have only heard of malum in se once so far and that was recently.  It has been cited in the perjury thing against President Bill Clinton and I think that is one of the main reasons why special leave should be granted.  You may never see it in Australia again and you should take the opportunity to rule on it.

GLEESON CJ:   Thank you, Mr Weston.

We have heard together five applications for special leave to appeal against decisions of the Court of Appeal of the Supreme Court of Victoria.  In each case, the respondent to Mr Weston’s application is the Indigo Shire Council.  The matters are M29 of 1997, M47 of 1998, M48 of 1998, M49 of 1998 and M60 of 1998.  The respective decisions of the Court of Appeal were of the President of the Court of Appeal and Charles J, then Phillips and Kenny JJ; Phillips and Kenny JJ: Phillips and Kenny JJ; and Marks and Hayne JJ.

We have examined the decisions in question and we have taken note of the written and oral submissions advanced by Mr Weston, but we have ultimately come to the conclusion that there is not sufficient reason to doubt the correctness of the decisions of the Court of Appeal to warrant a grant of special leave, and for that reason, the applications for special leave are refused.

Is there an application for costs, Mr Melville?

MR MELVILLE:   Yes, your Honour.

GLEESON CJ:   What do you say about that, Mr Weston?

MR WESTON:   I oppose it, your Honour.

GLEESON CJ:   Is there anything you would like to advance as to why that result should not - - -?

MR WESTON:   I think you have heard most of my argument.

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

AT 3.26 PM THE MATTERS WERE CONCLUDED