Williams & Ors v Spautz

[1993] HCATrans 56

•

.

~

IN THE HIGH COURT OF AUSTRALIA	•
Office of the Registry

Sydney No S59 of 1991

B e t w e e n -

ALAN JOHN WILLIAMS

ALLAN AGIPOTIS MORRIS

COLIN LESLIE GIBBS

MARGARET YATES

Respondent/Appellants

and

MICHAEL EDWARD SPAUTZ

Applicant/Respondent

Notice of Motion

MASON CJ
BRENNAN J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

Williams(3) 1 11/3/93

AT CANBERRA ON THURSDAY, 11 MARCH 1993, AT 10.32 AM

Copyright in the High Court of Australia
MR M.E. SPAUTZ, in person: Your Honours, I am representing

myself, as you probably know.

MR B. R. MCCLINTOCK: If the Court pleases, I appear for the

respondent who, of course, were the appellants in

the original appeal.	(instructed by Minter Ellison
Morris Fletcher)

MASON CJ: Yes, Dr Spautz.

MR SPAUTZ:	Your Honours, I will make this short because I do not think it is necessary to take up any more of
the Court's time.  I just wanted to formally
present, if it has not already been done, the
notice of motion accompanied by the affidavit,
which were filed on 1 October last year and, in
particular, I would like to rely upon the facts and
arguments contained in the affidavit including the
schedule thereto, which lists all of the cases upon
which I am relying plus a few other authorities,
including the Judiciary Act.
MASON CJ:	Dr Spautz, you are aware, are you not, that it is only in the most exceptional circumstances that the Court exercises a jurisdiction to vacate an order
which it has made.

MR SPAUTZ:  I can understand that readily, Your Honour. In

fact I know of only two cases where there were

applications made to do so and they were

unsuccessful, so it follows that it must be

exceptional.

MASON CJ:  And the other point is that the jurisdiction is

never exercised in circumstances where the

applicant seeks to put before the Court an argument

which, either deliberately or through inadvertence,
was not placed before the Court at the hearing
which gave rise to the judgment.

MR SPAUTZ:  I can understand that too, Your Honour, but my

point and argument is that, in fact, all of these

authorities and arguments were in front of the

Court in the context of a notice of contention and

the lists of authorities to be relied upon to

support that notice.

MASON CJ: Yes. But you are aware also that arguments are

presented, according to our tradition, orally. The notice of contention does no more than identify the

grounds which will or may be raised by oral

argument in support of the notice of contention.

The point is that your counsel did not actually put

to the Court the specific points that are in the

notice of contention, although it can be said that in the general submissions which your counsel made

Williams(2) 2 11/3/93

to the Court the broad strand, represented by some

of these points, was put to the Court.

MR SPAUTZ:  Yes, Your Honour. Besides that I think it can

be argued quite rightly that during the course of

the arguments Mr Cassidy, QC, on my behalf, late in
the day when I think one of Your Honours said,

"What about the notice of contention?" and Mr - - -

MASON CJ: Yes, that is at page 69.

MR SPAUTZ:  Yes, right, and I gathered from reading this and

talking to the solicitor but not to Mr Cassidy that

Mr Justice Brennan said, "You do not have to say

anything". Now, that could be interpreted

different ways and I was not present, of course,

and so I am not in a position to gather from tone

of voice or gestures or anything - but I gathered

from talking to the solicitor that this, in effect,

was a statement - it is not necessary in view of
the fact that all of your arguments and authorities
are in writing. And it did not seem to mean, or it
is not necessary because you are going to lose any
way or it is not necessary for other reasons, it
would not make sense to tell the barrister that was
not necessary in this context if in.fact it was

necessary in order to put across the arguments in

an oral manner.

So, furthermore, talking to the solicitor he

said - and of course I cannot verify this because

he is not here and I do not have an affidavit, but
he did say that we were only given a day, and if we
were to go into all of the arguments orally, which

were represented in the notice of contention and

the authorities, then it would probably take at

least another couple of days which were not

allocated.

So, in a way I felt cheated, in the sense of

not having enough time being made available to put my case, which was a very big one; it was very big

in the Court of Appeal and in the Court of Appeal

those very same submissions; the points that were

in the notice of contention and the lists of

authorities, were all in front of the Court and in

the Court of Appeal I was not aware that all of
those had to be done orally. In fact, we were

supposed to put in an abstract of the arguments in

the form of submissions, in order to save the court

time and this was my view as well at the High Court

level and I could not see anything in the rules of

the High Court that indicated that any arguments to

be relied upon must be put orally.	I mean, if you
say that is a tradition - - -

Williams(3) 11/3/93

MASON CJ: Well that has always been the tradition in this

Court. Now, there is a requirement that a written
outline of argument be presented by a party at the

beginning of his or her oral presentation, but with

that exception, the tradition is, the practice is,

that arguments are presented orally. Now,

sometimes counsel present a comprehensive written

argument of their own choice and sometimes I

direct, in a very long case, that the parties file

and serve comprehensive written argument, but in

the absence of such a direction, it is expected

that the argument will be presented orally. The
notice of contention is, in effect, a pleading,

which gives notice to the Court and notice to the

other party that certain points will, or may be,

raised. In other words, it identifies the

framework within which argument may take place, but

it is not an argument in itself.

MR SPAUTZ: Yes, Your Honour, and in further response to

that I would argue that the rules of natural

justice are paramount and they would transcend even

this particular one, namely that any arguments have

to be presented orally.

MASON CJ: But the rules of natural justice merely require

that a party have an opportunity of presenting his

or her case to the Court.

MR SPAUTZ:	Yes, that is the point I am trying to make; that in view of the time constraints we did not have
that opportunity.

MASON CJ: There were no time constraints, Dr Spautz.

MR SPAUTZ:  If you say so, Your Honour, I gathered from

talking to my solicitor that we were allocated one

day only and by the time we got to this point on

page - - -

MASON CJ: Well cases are fixed, having regard to estimates

of time, but it is not unknown for cases to extend

beyond the time that is estimated, either by the

legal representatives in the case or, as it were,

as a matter of Court expectation. Indeed, this

very week two cases extended beyond the time that

it was thought they would take.

MR SPAUTZ:  Yes, Your Honour. I would further point out in

the context of the rules of natural justice, that

at the Court of Appeal level, as you may recall, I

represented myself and was successful at the Court

of Appeal.

But, unfortunately, the two justices that

ruled in my favour on the abuse of process issue, for whatever reason, did not consider these very

Williams(3) 11/3/93

same arguments at that level, some of which were

binding precedents by the High Court itself, for

example the Bayne cases early in this century,

which were binding upon the Court of Appeal, and

had the Court of Appeal done its job properly,

namely by going into all of the cases that I cited

which were in the hundreds, Your Honour, then

instead of relying upon the Jago case which, as

this Court pointed out, turned out to be irrelevant

or of marginal or little value to this particular

case.

So, the unfortunate thing that I am faced with

in the context of natural justice, is that I was

not given a fair hearing at that level, nor was I

given a fair hearing at the level before that,

because some of these same cases were in front of

Mr Justice Smart in the first instance. He

apparently - I cannot explain the reason - but for
what ever reason he did not get into these points

of contention, for example, where it was ruled

earlier in this century that, in order to

constitute an abuse of process, it has to be

argued, it has to be proven that the person who is

abusing the court process did so fraudulently and

oppressively and that his purpose was inconsistent

with the purpose of the legal process that he was

invoking.

Now, at the first level and at the second

level, both courts did not get into these very
arguments which were binding upon them. So, I

think there ought to be a rule, maybe the outcome

of this whole dispute would be that there has to be

some way of getting a lower and intermediate court

to make rulings instead of relying upon the

aggrieved person to bring them up as points of

contention. If there had never been a Jago case,

Your Honours, I suspect that Mr Justice Priestley

and the other members of the court would have gone

into these Bayne and King v Henderson and perhaps

more thoroughly into the Grainger case but they did

not.

So here I am. I feel very aggrieved, I felt

aggrieved even at that level when I saw the

judgment from Mr Justice Priestley, which Mr Justice Meagher backed up. When I saw those judgments I was dismayed because I, personally, did

not think that the Jago case was as valuable for my

purposes and I wondered, "Gee, now when I, if I

have to go to the High Court, then I am going to

have to try to revive all these other cases, which

I did.

I put them to my lawyers and then I did not

come here myself, which I should have done and the

Williams(3) 11/3/93

reason I did not come is because, I think it was

Your Honour himself or somebody, maybe it was the

presiding Judge at the applications, which I think

was Your Honour, a leave application?

MASON CJ: Yes, that is correct. I presided at the leave

application.

MR SPAUTZ:  Yes. Your Honour, I recall that you advised me

to not do it myself. If I had done it myself -

MASON CJ: That is customarily the advice I give to

litigants in person, Dr Spautz.

MR SPAUTZ: Yes, I understand, Your Honour. But anyway, I

did get legal aid and I relied upon my lawyers to

do the job that I would have done myself, and now,

as you are fully aware no doubt, even if I wanted

to I do not have any legal redress against my own

lawyers, if they did not do the job that I would

have done myself. I mean that, itself, looks like

another breach of natural justice, Your Honour,

because I certainly would have made sure that at

least all the arguments that I am putting in my

notice of contention here, the binding one, the

ones that were binding upon the law reports, at

least those would have been presented here. And if

we would have run out of time, I would have tried

to get an extension, because I wanted to make sure

that all of the facts and all the arguments and

authorities were in front of the Court.

So, I feel aggrieved on numerous grounds on

the natural justice principle, Your Honour. First
of all on the inability to get myself heard

personally, because of advice of the Court itself,

which I am not pointing any bones, or anything,

Your Honour. I can understand that argument that -

I mean, it is said that a person who acts as his

own lawyer has a fool for a client. I mean I have

heard of that many, many years ago, and it may turn

out that that is the case. But it is because I was

not able to do it myself, and now I am in that

position where apparently Your Honours think that

you do not even have the jurisdiction to do any

more than just hear me, and then that is the end of

it, because I suspect as a result of what you said,

there is no way I can convince you that this is

such a truly exceptional case on the basis of

natural justice that you should actually go through

all the arguments and see if there is any merit in

them.

MASON CJ: Yes. Well, that is how it appears to me, subject

to anything that you can say to the contrary, in which your complaint is that some argument that

Williams(3) 6 11/3/93

you wanted to put to the Court was not put to the

Court, and that the Court should now consider those arguments.

Now, in saying that, I should point out to you

that I do think the majority of the 41 points that

you seek to raise in the notice of contention, are

points that were generally caught up in the general

submissions made by your counsel at the hearing of

the appeal.

MR SPAUTZ:  Yes, generally.

MASON CJ: It is not as if these matters, these 41 points,

are completely new matter that is dissociated from
the submissions that the Court did consider and
deal with in the judgments. It is not that class

of case.

MR SPAUTZ: Well, yes, Your Honour, in that case I think I

do have a meritorious case even though this may be

the first time in history, because, unlike the

other cases - I think for example the Codelfa and

Metwally cases, which are the only two that I know

of where they tried to make such an application - in those cases I believe the argument hinged upon factual matters, but I think here, the arguments

hinge upon the law. As I understand it, the Court

is entitled, in fact, has a duty, to fill in any

legal gaps. In other words, the High Court itself

is bound by its own previous decisions unless, and

until, it explicitly rules to the contrary, and I

have not seen anything in the judgments to indicate

that any of Your Honours, that is the seven,

considered these particular legal points which I am

raising here in this schedule to my affidavit.

So it cannot be said, I think, Your Honours,

that the High Court has taken upon itself to, in

effect, change the law from what it used to be.	I
think the law was and still is, until explicitly
changed, what it has been for perhaps up to a
century.

So without any further ado, Your Honour, I

think that this argument that I am trying to put

means that this is an exceptional case where there

was adequate argument on a general basis, but it

was not necessary, and as Mr Justice Brennan said,

"You do not have to say anything", that seemed to

indicate that it was adequately covered by the

general arguments, and especially in the context of

the time element.	I guess that is about all I can
say, Your Honours.

Williams(2) 7 11/3/93

MASON CJ: Thank you, Dr Spautz. The Court will take a

short adjournment at this stage to consider the

course it will take in this matter.

AT 10.50 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.55 AM:

MASON CJ:  The Court need not trouble you, Mr Mcclintock.

MR MCCLINTOCK: If Your Honours please.

MASON CJ: This is an application by the respondent, in an

appeal to this Court, to vacate the order allowing

the appeal and for a rehearing or for a

reconsideration of the appeal.

The principle governing the exercise of

jurisdiction to reopen a judgment and to grant a

rehearing is well established. In University of

Wollongong v Metwally {No 2] (1985) 59 ALJR 481, at

p.483, the principle was expressed in these terms:

"Except in the most exceptional circumstances,

it would be contrary to all principle to allow

a party, after a case had been decided against

him, to raise a new argument which, whether

deliberately or by inadvertence, he failed to
put during the hearing when he had an

opportunity to do so."

And, in Wentworth v Woollahra Municipal

Council, the Court said:

"Generally speaking, (the jurisdiction] will

not be exercised unless the applicant can show

that by accident, without fault on his part,

he has not been heard."

The purpose of the jurisdiction is not to provide a

means by which unsuccessful litigants can seek to

reargue their cases.

In this case, the applicant, who appears in

person, relies principally on two matters in
support of the relief which he now claims. Those
matters are: (1) that the Court did not deal
specifically with 41 points raised in a notice of
contention with the applicant filed in the appeal;

and (2) that the Court was wrong in holding that

there was an abuse of process.

Williams(3) 11/3/93

The short answer to the first matter on which

the applicant relies is that the 41 points in the

notice of contention were disavowed in argument by

counsel for the applicant, except to the extent

that they were adopted by counsel in the general

submissions that he put to the Court and which were

dealt with in the judgments.

In the course of argument during the appeal,

the Chief Justice specifically asked counsel for
the respondent:

"What about this notice of contention,

Mr Cassidy?

Before you answer, I should make it clear that

I am not inviting you to address us at any

length on it."

Counsel's response was:

"Your Honour, I did not intend to put any

arguments to the Court other than those which

we have put, some of which have perhaps

adopted some points that were not dealt with

in the court. I do not know whether it was

obvious from the typing that the notice of

contention was not of my authorship."

To the extent that the points of contention

were taken up in the oral submissions put to the

Court, they were dealt with in the judgments; and

to the extent that the points in the notice of

contention were not raised by counsel, that was the

consequence of a deliberate decision not to raise

them, or not to take the opportunity to raise them.

The applicant's submission that the Court was

wrong in holding that there was an abuse of process

is no more than an attempt to reagitate the case

that was presented by counsel on his behalf on the

hearing of the appeal. For that reason, it does

not constitute a ground for the exercise of the

jurisdiction which the applicant seeks to invoke.

The application is therefore dismissed.

MR MCCLINTOCK:	I ask for costs, Your Honour.
MASON CJ:	You do not oppose an order for costs, do you,

Dr Spautz?

MR SPAUTZ: Well, yes, I do, Your Honour, and the reason is

that I still rely on my argument that natural

justice is a paramount principle and that if my own

lawyers did not do the job properly, that

constitutes a very unfair result because I say that

justice has not prevailed. For that reason, I

Williams(3) 9 11/3/93

think that this application of mine - I should not

be required to pay the costs in particular because

this is such an unusual situation where I rather

doubt if very many other litigants, that is to my

knowledge, have that same sort of grievance, namely

on the basis of natural justice involving his own

lawyers, especially since the Giannarelli case

where - and I am not implying that I would want to

sue my own lawyer, but the fact is that where a

litigant is in this position he has no legal

redress and I say that that itself is another

breach of natural justice.

So, I think, in the circumstances, that I

would have to, on the basis of principle, as well

as the fact that I am on the dole and I cannot pay

it anyway, that the just result would be to have

the Court not make an order or to order that both

sides pay their own costs. Thank you, Your Honour.

MASON CJ:  The ordinary rule is that costs follow the event.

In those circumstances, the order must be that the applicant pays the respondent's costs of this

application. The Court will now adjourn until

9.30 am tomorrow in Melbourne.

AT 11.01 AM THE MATTER WAS ADJOURNED SINE DIE

Williams(3) 10 11/3/93