Sal's appearance in the High Court of Australia

Sal's appearance at the High Court of Australia in 1999

November 7, 2014

I would like to place this transcript obtained from the High Court website to indicate just one of the many struggles I have undertaken to seek justice. Ultimately I was not successful in my special leave application for obvious reasons that you will see.

In a nutshell, even after I proved to the two judges that there was incontrovertible evidence that the trial judge conveniently overlooked, they still did not grant me leave. The best I got was Justice Kirby telling me that "I can understand you are hurt by that comment and I can understand the criticism you make of that comment and I think your criticism is well founded but..." At one stage he asks me if I'm a solicitor??? you can read the rest.

High Court of Australia Transcripts

Automotive Detailing Pty Ltd v Drummoyne Municipal Council S59/1999 [1999] HCATrans 592 (30 November 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S59 of 1999

B e t w e e n -

AUTOMOTIVE DETAILING PTY LTD

Applicant

and

DRUMMOYNE MUNICIPAL COUNCIL

Respondent

Application for special leave to appeal

GLEESON CJ

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 30 NOVEMBER 1999, AT 12.51 PM

Copyright in the High Court of Australia

GLEESON CJ: Mr Scevola, you seek leave to appear on behalf of this company?

MR S. SCEVOLA: I do, your Honour.

GLEESON CJ: And you need an extension of time. Is either of those matters opposed, Mr Joseph?

MR M.J. JOSEPH, SC: No, your Honour. I appear for the respondent. (instructed by McCabes Lawyers)

GLEESON CJ: Yes, go ahead, Mr Scevola.

MR SCEVOLA: Thank you, your Honours. This appeal relates to an application made in the District Court with regard to negligent misstatement of a Council officer of Drummoyne Council, the respondent. We bring this to your Honours' attention and, in particular, section 35 of the Judiciary Act and, in particular to that, the criteria under which special leave is granted. We seek that there are, in addition to the prescribed considerations, other matters which the High Court considers relevant include that the proposed appeal exclusively involves what turns on a question of fact.

KIRBY J: That is all that is involved in the application, is it not?

MR SCEVOLA: Well, it is a question of fact in the judgment of Acting District Court Judge Bowden.

KIRBY J: Yes, I realise that but it is very, very rare, very rare indeed, that special leave is granted to review questions of fact and then only generally incidental to a matter of law which is of importance for the whole country.

MR SCEVOLA: I respect that, your Honour. Well, I think that dealing with a Council authority, being a public authority, that it does involve a question of public importance and that is that if the representations had been relied upon, and those representations are accepted as expert advice, then the Court must intervene and examine those reasons for judgment.

KIRBY J: But there are two problems, are there not? One is that it is really just a question of fact which is generally sorted out at trial and sometimes in a Court of Appeal but, secondly, there were findings by the trial judge of who he believed, and that usually sends alarm bells ringing in an appellate court because we do not see the witnesses and therefore we cannot judge who is to be believed or not.

MR SCEVOLA: In that instance then we will be relying on the incontrovertible documentary evidence that was not of utility to the District Court judge and referring to that evidence by not giving the due weight to the evidence, I believe he has, as in the SRA Case, culpably misused his advantage. So, if I can digress from that a little.

GLEESON CJ: Yes, certainly, go ahead.

MR SCEVOLA: The application, as I said, principally relates in the summary of argument on page 54 of the application book. The basis of the appeal deals principally around the conversation on or about 11/8/95 between the managing director of the appellant and myself, Salvatore Scevola, and the officer of the Council, Mr Connor Norton. The trial judge, Acting District Court Judge Bowden, held that a conversation did in fact take place between the parties but he did not accept the managing director's account of this fact. In turn, the majority of the New South Wales Court of Appeal, Justices Sheller, Beazley and Fitzgerald, unanimously held that view, that it was in fact open to the trial judge to make such conclusions.

We will be referring your Honours to several parts of the evidence to show that his Honour the trial judge did not evaluate the evidence accordingly, and if I could take your Honours to annexure B of the annexures to the application book.

KIRBY J: Is that in the application book or in the supplementary volume?

MR SCEVOLA: It is in the supplementaries, in the folder that you have just in your hand there. Your Honours, the application under SEPP 4 is a notice to Council to carry out a development without consent. It is a document held solely within the confines of the Council premises and it is distributed only with the express advice of the town planner. This application was made, and, going from the transcripts or a section of the transcripts, my opponent put certain questions to the witness of the Council, Mr Norton, as to what is the procedure when going down the path of a SEPP 4 and he has answered that by saying, firstly, if it is a bona fide SEPP 4. Well, it is our respectful submission that it was a bona fide SEPP 4 and that there was no way that that could be looked upon any differently if you refer to the subsequent DAs that were lodged with the Council on the Council's advice.

If I can refer your Honours to annexure C of that same attachment, it is the copy of the original DAs which were lodged with the Council. Can I take your Honours to section 4 of that which is "OFFICE USE ONLY" and you will note that none of that has been filled in by the officer of the Council. In turn, there is a portion there marked "CERTIFIED PROCEDURE":

Is environmental impact minor : YES/NO

There were certain questions that needed to be answered by whoever was dealing with the application. His Honour in the District Court, commencing at page 9 of his reasons for judgment, if I could take your Honours - - -

KIRBY J: Are you are lawyer yourself, may I ask?

MR SCEVOLA: No, I am not.

KIRBY J: You seem to use all the correct expressions.

MR SCEVOLA: I hope I have studied it - - -

KIRBY J: I do not know whether that is a compliment.

MR SCEVOLA: Okay, thank you. At 10 on page 23 of his judgment, he says:

Mr Norton seemed to me to be a person who was not adventurous and was perhaps pedantic. He was careful to differentiate between what he could definitely remember as not having happened, and what he could not recall, even when he considered that it was most unlikely that such a thing would have happened. Despite the most searching cross-examination he emerged to me as a person who would not in any circumstances depart from his procedures, and who was doing his best to be scrupulously truthful.

Well, in not filling out the certified procedure that has been adopted by the Council when determining DAs, he is certainly not following the certified procedure and therefore one tends to question his own personal procedure which was quite exhaustive during the trial; at times particularly evasive.

KIRBY J: But these are matters that you have to put to a trial judge because, you see, the trial judge assesses scrupulous honesty and scrupulous truthfulness in part upon the general impression that he or she gets from the witness.

MR SCEVOLA: Yes.

KIRBY J: And we just cannot do that, whereas this judge had that advantage. The sort of things you are saying now, the sorts of reasons that you put to the trial judge doubtless was done to try to dissuade the judge from the conclusion which he reached, but it really cannot be mounted in this Court.

MR SCEVOLA: With respect, your Honour, your Honour said in the SRA Case - - -

KIRBY J: I am very familiar with the SRA Case and I am not a person who believes that the judges have miraculous powers of telling truth from the appearances of witnesses, but this is a case where the trial judge did take a view about the truthfulness of this witness and you would need pretty strong evidence to overturn that.

MR SCEVOLA: Well, I would submit to this Court, your Honour, that the fact that the section 4 on both the DAs, which is the certified procedure, was not adopted by the Council officer is determinative of the fact that he was not someone who followed procedures.

KIRBY J: Well, it is a debating point, Mr Scevola. It is a debating point. It is not the sort of "Gotcha" point where, as in SRA, the judge had overlooked things that were quite significant.

MR SCEVOLA: Your Honour, there are two other areas where I think our submissions are worth mentioning and that is at page 22 of the application book at 25 where his Honour said:

If he had been an argumentative Irishman he might have contested the accuracy of Mr Scevola's assertions -

Now, I do not think it appropriate to mention anyone's nationality or country of origin and therefore I would submit that that in itself has constituted some bias.

KIRBY J: Well, perhaps the judge should not have said that but he was probably not meaning any offence. The fact is I am an Irishman, Australian of Irish - such people are often argumentative. I admit to it occasionally myself.

MR SCEVOLA: I do not dispute that, your Honour, but I do not think that somebody's nation of origin should be an attribute, a detriment or a liability.

KIRBY J: I think the judge was just - leave out the Irishman. I think he was just saying that if he had been an argumentative person. That is the point the judge is making. This witness seems to have been a rather placid, punctilious sort of person.

MR SCEVOLA: Perhaps, your Honour. Then I will take your Honour to the same page at 50 where he pronounces my evidence before the court and he goes, what I believe, over the top in stating that:

The totality of Mr Scevola's evidence, its inconsistencies, proved inaccuracies and the way it was given, satisfies me that he is one who is inclined to put a construction on events that best suits the project that he has in mind, and to tell people what he thinks it is appropriate for them to know. I think this applies to his evidence before me, as it does to his business dealings generally.

Now, his Honour does not know my general business dealings. His Honour is in no position to make such a remark.

KIRBY J: I can understand you are hurt by that comment and I can understand the criticism you make of that comment and I think your criticism is well founded but what, I think, you would read that to mean would be "business dealings in the matter which is before his Honour" because his Honour would obviously not have any knowledge of your general business dealings. So, one would read it as meaning, "The business dealings that are in question here", namely, your application to the Council. I think that is how you should read it. It would be no part of the judge's role to make comments on your general business dealings. He has no knowledge of those. He only knows of your dealings in relation to this case.

MR SCEVOLA: I would think so, your Honour, but at the end of the day I am disturbed by that and I do factor in your Honour's interpretation to that, but I still am offended by such a remark.

KIRBY J: Well, you must understand we sit here to correct orders. We do not sit here to correct reasons. This is a very important case to you and I can understand, in the light of your last comment, why you feel aggrieved but read the opinion of the judge in the way I have said and it is a fairly standard sort of statement. The judge, without miraculous powers, has to decide who he believes and he formed a view. He may be right or he may be wrong but we can only disturb it if there are very well-established objective bases. What you have pointed to so far does not give us that basis.

MR SCEVOLA: Well, I will put it to your Honours that there was sufficient reasons for bringing this application to this Court. They essentially involve the question of fact and you are right, your Honour, that certain restrictions are placed in that area, but it disturbs me that on the totality of all the documentary evidence that was produced for the court that his Honour has made a finding which is totally inconsistent with common logic because he answers, at page 23 of his judgment, at 30:

I similarly find that he received the SEPP 4 form from Mr Norton and that, at that time, did and said nothing of relevance other than asking for a form.

Now, Norton's evidence is that this conversation did not exist, your Honours. He does not say that he does not recall. He does not say that he cannot have a recollection of it. He say it does not exist. His Honour has made a finding that a conversation did exist. How does that infringe upon the credibility of witness Norton? If I have been judged on certain inconsistencies within my own affidavit, and surely that is acceptable for a judge to do that, then what he has applied to me as reasoning he must also apply to the other witnesses. He cannot distinguish either by race or otherwise why he is going with one witness as opposed to the other. It is my respectful submission that in finding that there was a conversation, which there was, that has seriously diminished the credibility of witness Norton because, as I say, he does not say that he does not recall it, he says it did not happen.

Furthermore, there were two other witnesses that were called: one for the plaintiff, Mr.....who did even get a mention in the judgment because it dealt with issues which were corroborative of the first conversation with the Council officer, and the other one was witness Stuttle who was the ranger, the Council ranger of the respondent. Well, the ranger actually said that Mr Norton knew me, whereas Mr Norton said he did not know me. There are many inconsistencies in this case. If one goes back to the transcripts, the evidence is all there in black and white that no reasonable judge under the circumstances could have found that I said nothing of relevance when applying for the use of the property as a car wash café.

I suppose, in turn, the Court of Appeal which dealt with it under section 45(4), in short form, were not interested in looking into the merits of why his Honour came to the conclusion. They simply accepted his Honour came to that conclusion and for whatever reasons he came to those conclusions they are happy to write off on them without the need to analyse them. The evidence was given during the trial and that evidence should have played part of the judgment. A lot of it did not and, in particular, the first DA was refused by the council, 149/95. Mr Norton said in evidence that when it was eventually approved that the 29 conditions he placed on the second DA for approval, he could have placed on the first DA six months earlier.

Now, that was of no utility to the trial judge when assessing his credibility. He also said that - well, I will take your Honours briefly to annexure D which is the transcripts of the land and environment matter and, particularly, to page 244. Justice Bannon said:

As to the costs of the action -

and this was an interlocutory order, class 3 interlocutory order, against the company which the Council had taken out, that:

the costs of the action, the overall costs, I can see that Mr Scevola was under an apprehension, if you will, that he didn't need development consent, or at least when he filed the notice with the council which is Annexure "D" to his affidavit.

Which is the set form. I was under an apprehension. That in itself is a finding of fact in the land and environment matter. Acting Judge Bowden says, "He said nothing of relevance when asking for the form". Now, surely, somebody must indicate to someone what they propose to do in order to note which form it is to be adopted to be put to the Council. We cannot deal with a series of hypotheticals and say, "Well, he could have said this and he could have said that and he could have said that". The precedent is set in Shaddock and Associates. They purchased the property for development. We leased the property for a development of a car wash café and nothing else.

KIRBY J: You agree, I think, that the only point in your case is the dispute about the facts.

MR SCEVOLA: Dispute about the facts as pronounced in the judgment.

KIRBY J: And that there is no point of law or principle that is of importance to the law generally in Australia in the case?

MR SCEVOLA: I simply have to say, your Honour, that this Court has the ability to consider items which are of public importance and, therefore, I would submit that this is a matter of public importance. It is dealing with a statutory authority, express advice from a statutory authority and a loss that has occurred. My opponent said during the trial that a lot of water had gone under the bridge during the interlocutory orders of the first DAs, the second DAs, the subsequent DAs. That is right, a lot of water had gone under the bridge including a family home that washed underneath the bridge. That is why we had taken these matters to the courts. It is the final point of dispute resolution and we do not feel that we have been treated fairly and this is our appeal to this Court. Having said that, thank you.

GLEESON CJ: Thank you. We do not need to hear you, Mr Joseph.

Nothing that has been said by the applicant's representative, Mr Scevola, or that is contained in the written submissions filed on behalf of the applicant, would warrant this Court in disturbing the decision of the trial judge. There is therefore no real prospect of success in the appeal. For that reason, the application is refused with costs.

MR JOSEPH: If the Court pleases.

GLEESON CJ: We will adjourn until 1.45.

AT 1.11 PM THE MATTER WAS CONCLUDED

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