McKinnon v Commonwealth of Australia

EX TEMPORE REASONS FOR JUDGMENT 1 On 19 November 1998 I heard motions filed by the first, second and fourth respondents that the application brought by Mr McKinnon be stayed on the ground that he had refused to attend medical appointments that had been arranged by them. For the reasons that I then gave I ordered the respondents to notify Mr McKinnon of appointments that had been made for medical examinations in Sydney on or before seven days from 19 November but on terms that the appointments not be made at a place which was adjacent to a dental surgery. The orders proceeded as follows: "In the event that the applicant does not participate in those examinations leave be granted to the respondents to have the motions relisted on 48 hours notice so that the proceedings may be stayed against the respondent or respondents whose expert medical appointments are not kept." 2 Subsequently, and it is not controversial, appointments were specifically arranged by the first respondent and the fourth respondent for Mr McKinnon to attend medical examinations. Indeed an appointment arranged by the first respondent was altered at Mr McKinnon's request to suit his convenience. It is common ground that Mr McKinnon did not attend the medical practitioners at the appointed times. 3 It is also common ground that the second respondent did not seek to arrange for Mr McKinnon to attend any particular medical examination after the orders I made on 19 November 1998. 4 The position of the third respondent is more complicated. On 14 April 1998 Messrs Mallesons Stephen Jaques, solicitors for the fourth respondent, advised the then solicitors for Mr McKinnon that they had arranged an appointment in conjunction with the third respondent for an examination to be held by Dr Parmegiani, a psychiatrist. That was one of the appointments which Mr McKinnon had not attended prior to my orders of 19 November. The fourth respondent did arrange for an appointment with Dr Parmegiani after the orders of 19 November although Mr McKinnon did not attend it. I accept that Mr McKinnon was not notified directly by the third respondent at the time the new appointment was arranged that this appointment was both on behalf of the third and on behalf of the fourth respondent. However it is clear that the appointment with Dr Parmegiani was on behalf of both the third and fourth respondents and that Mr McKinnon would have been entitled to assume this if it had been in issue. In a letter dated 2 February 1999 the solicitor for the fourth respondent wrote to Mr McKinnon: "On 16 December 1998 you did not attend the expert medical appointment we had arranged with Dr Parmegiani. This appointment was arranged on behalf of the third and fourth respondents." 5 It is the position of the third respondent that it proposes to rely upon the evidence of the fourth respondent including the evidence which it is hoped would be available from Dr Parmegiani as a result of the medical examination. 6 On the present occasion Mr McKinnon was legally represented. His solicitor made the following submissions: 1. that the medical appointments arranged after the orders of 19 November 1998 were made outside of the seven day period referred to in my orders of that day; 2. that three appointments were arranged for Mr McKinnon to attend at on the same day. This submission presumably is in justification of Mr McKinnon not attending; 3. that I should, instead of staying the application, accept now an undertaking of Mr McKinnon in the following terms; namely that Mr McKinnon will attend medical examinations arranged by each of the respondents provided that: (a) there be not more than one medical examination arranged on one day; (b) he has the opportunity to have present at each examination a medical practitioner of his choosing; (c) that the respondents use their best endeavours to arrange medical examinations on the Central Coast and otherwise as previously ordered by me; (d) that not more than two medical examinations be held for each respondent. 7 Neither of the first two submissions appears factually correct. Those medical appointments that were arranged for Mr McKinnon, and not kept by him, were organised within the seven day period. Were it not correct I would have been prepared to excuse a day or so if there had been a default on the basis that there was no prejudice to Mr McKinnon. However, the evidence suggests that correspondence, notifying Mr McKinnon of the appointment, was dated within the seven day period. It may be possible that Mr McKinnon did not actually receive the letter within the seven day period although it is not suggested that he did not. 8 The second submission is likewise not wholly factually accurate. The evidence which appears to be accepted by everyone is that initially there were two appointments at 2 pm and one at 12 noon on 16 December. One of the appointments at 2 pm was then moved to another day leaving the two appointments on 16 December; namely one at 12 and one at 2 pm both of which Mr McKinnon was required to attend. In neither case did Mr McKinnon attend. It is hard to see why it would be inconvenient for Mr McKinnon to attend two appointments on the same day. It would save him having to come down to Sydney on yet another occasion. 9 In the light of the long history in this matter during which Mr McKinnon has on numerous occasions not attended medical examinations, I do not think that I should now accept Mr McKinnon's undertaking, particularly as he seeks to impose conditions where none previously existed. No doubt where appointments are to be arranged it is desirable that they be arranged at a time which is convenient not only to a medical practitioner but also, if possible, to the applicant. However, I do not see why I should now accept undertakings in the form suggested when Mr McKinnon has been in total disregard of the orders that have been made on previous occasions. 10 However, that does not mean that Mr McKinnon's case need necessarily be permanently stayed. It would be open for him to make arrangements with the medical practitioners already nominated by the respondents for an examination to be held at their and his convenience. Insofar as he does so, obviously the medical practitioner would wish to ensure that his fees were paid by the respondents. That is a matter for them. But, if Mr McKinnon was prepared to attend appointments but could not make them because a particular respondent declined to underwrite the costs of the examination, I would consider lifting the stay. 11 If Mr McKinnon attended the medical appointments, then I would immediately lift the stay. But it seems to me at this stage that Mr McKinnon, if he wishes to proceed with his case, must show his good faith by arranging the medical appointments himself. I would not impose upon the respondents the condition that Mr McKinnon's medical adviser attends. On the other hand, I see no reason why that might not be accommodated by arrangement with the specialist should Mr McKinnon so desire. 12 Before making orders, I should say that the position of the second respondent has caused me some concern. However, it seems in the circumstances, where a stay would be given in the proceedings against each of the first, third and fourth respondents, rather absurd that proceedings continue against the other respondents when ultimately the whole case, if it proceeds, will require evidence involving all respondents. However, it does seem to me that, in the circumstances, the second respondent should not be entitled to an order for costs. 13 I would, accordingly, order that Mr McKinnon's application against each of the respondents be stayed and that Mr McKinnon pay the costs of the first, third and fourth respondents of the motion before me on 19 November 1998 to the extent to which costs orders have not already been made, and of the motions now before me seeking stays. 14 Before the Court are also two motions brought by Mr McKinnon. The first was filed on 25 January 1999. It sought the following orders: "1. That the orders made by His Honour Justice Wilcox, on the 20th January 1999, which were irregularly made, be dissolved and or expunged from these proceedings, and that the previous interlocutory orders of His Honour Justice Hill, regarding Discovery in these proceedings, from the First and Second Respondent, be reinstated in the Public Interest; 2. That the First Respondent be declared to be vexatious; 3. That the Second Respondent, be ordered to give additionally requested Discovery; 4. That in the interests of Justice, the Federal Court of Australia, Sydney Registry, be directed or ordered, to obtain and file, all transcripts of all proceedings in my matter, from the 15th May 1998, to the present date; 5. That in the interests of Justice, His Honour Justice Hill, be directed or ordered, to file a true copy of all relevant documents, which were before His Honour, prior to His Honour's interlocutory judgement decision orders, that were made on the 19th November 1998; 6. That in the interests of Justice, His Honour Justice Hill, be directed or ordered, to file a true copy of His Honour's written reasons, for His Honour's judgement decision orders, which were made on the 20th November 1998." 15 The second motion was filed on 6 April 1999 and sought the following orders: "1. His Honour, Justice Hill, not hear my matter any further, with regard to any Applications or Notices of Motion by any Respondent, to have my matter stayed in relation to any Respondent's required Medical appointments, until such time as my applications to seek leave to appeal, and if leave is granted, until such time as my appeal against His Honour Justice Hill's interlocutor Orders of the 19th November 1998, can be properly heard by the Full Bench of the Federal Court of Australia, so that my matter will not suffer any further jeopardy of being wrongfully stayed, before my appeals are properly heard by the Full Bench of the Federal Court of Australia, or High Court of Australia; 2. That my Applications to seek leave to Appeal, and Notices of Appeal, against the interlocutory Orders of His Honour Justice Hill of the 19th of November 1998, and of the 20th November 1998, be transferred to an alternative Full Bench of the Federal Court of Australia, other than the Full Bench which was constituted by their Honours, Justice Branson, Justice Finn, and Justice Hely, for urgent variation of their Honours apparently wrongful Directions, given on the 30th March 1999, which have effectively denied me access to the relevant transcripts and other necessary relevant evidence, and have prevented me from making my appeal books, and which have placed my matter in further jeopardy of being unfairly stayed, which could constitute a breach of my civil rights, and a breach of the Constitution of Australia, which my Application to seek leave to Appeal from His Honour Justice Hill's interlocutory Orders of the 19th November 1998, was sought to prevent this further jeopardy from occurring to my matter, which their Honours have apparently wrongfully placed upon my matter, which is clearly contrary to the relief I had sought by my applications to seek leave to appeal, and Notices of Appeal, which were before their Honour's for Directions only, on the 30th March 1999; 3. That His Honour Justice Hill's interlocutory Orders, which were made on the 19th November 1998, and on the 20th November 1998, be suspended and or stayed, until such time as my applications to seek leave to appeal, and if leave is granted, until such time as my appeals are properly heard by the Full Bench of the Federal Court of Australia, or the High Court of Australia." 16 In support of the two motions Mr McKinnon read an affidavit dated 1 April 1999 and this affidavit was admitted subject to relevance. It is difficult to see that the affidavit has any relevance to the orders which Mr McKinnon has sought other than those numbered 2 and 3 in the motion of 6 April 1999. 17 I should note that I am hearing these two motions after having stayed the main proceedings. There may perhaps be an illogicality in that, for if the proceedings are stayed so presumably are Mr McKinnon's motions. On the other hand, some of the orders which Mr McKinnon sought are clearly not appropriate orders to be granted by a single judge. Others are made redundant as a result of the stay. It was for this latter reason that I was careful to ask the solicitor who appeared for Mr McKinnon in the stay proceedings whether he wished to deal with Mr McKinnon's motions first, or the stay application. He indicated that he wished to deal with the stay application first, for that was not merely more important but, also, rendered most of the other matters in Mr McKinnon's application in the event irrelevant if a stay was granted. 18 I propose to dismiss the notice of motion filed on 25 January so far as it relates to orders 2, 4, 5 and 6 but to leave on foot that motion so far as it concerns orders 1 and 3. Orders 1 and 3 sought by Mr McKinnon concern questions of discovery. If the stay is lifted they may become relevant. Otherwise discovery will not proceed. In essence I had made orders that various respondents give discovery of various categories of documents to Mr McKinnon. When the dispute about Mr McKinnon's attendance for medical examination arose, Wilcox J effectively took the view that discovery should not be granted at that stage. His Honour was in essence concerned that the respondents not incur costs if ultimately the application should be stayed for failure of Mr McKinnon attending a medical examination. Should Mr McKinnon ultimately attend an examination and the stay be lifted, or alternatively should a Full Court set aside my orders granting the stay, then no doubt it will be necessary to revisit the matter that Wilcox J deals with and it is for that reason that I would leave the motion on foot to obviate the need to file yet another motion in the event that that happens. 19 The second order Mr McKinnon sought in that notice of motion was an order that the first respondent, the Commonwealth of Australia, be declared to be vexatious. Mr McKinnon says that a solicitor acting on behalf of the Commonwealth, Ms Stephanie Kavallaris, had in an affidavit made false and misleading comments in various respects. 20 Mr McKinnon says, also, that when medical appointments were made he had given the first respondent 48 hours notice seeking that the appointment be postponed until his appeal be determined but nevertheless the appointments were not postponed and what is more a cancellation fee was incurred in the result. The fact that this cancellation fee is relied upon by the Commonwealth in the State proceedings is indicative, so it is said, of the vexatious nature of the Commonwealth. I am unaware precisely what it would mean as a legal proposition to declare a defendant to proceedings vexatious. Be that as it may, I do not think that any material has been put before me which demonstrates conduct which could possibly be declared to be vexatious. No doubt if a respondent to proceedings puts on a defence with no chance of success, the pleading might be said to be vexatious and could be struck out. But this is not the case here. 21 Here not only is there no real evidence in support of the proposition that the behaviour of the first respondent has been vexatious, the making of such an order would have absolutely no consequence and accordingly I think a motion seeking such an order should be struck out. 22 Orders 4 and 5 are directed at ensuring that the registry of the Court provides free of charge all sorts of material to Mr McKinnon, including transcripts, and copies of documents that were before me when I gave interlocutory reasons on 19 November 1998. 23 Mr McKinnon no doubt is entitled to inspect the file or so much thereof as is in the public domain. He is also entitled, if he wishes, upon payment of a fee to obtain a copy of the transcript or make arrangements, as I understand he has done, with the registry to listen to audio tapes of that transcript. However, in my view it is not appropriate to require this Court at its expense to provide documents which, if Mr McKinnon wants to put them before the Court, he can provide himself. 24 It is for this reason that I would dismiss the motion so far as it concerned orders 4 and 5. So far as order 6 is concerned I gave, on 20 November 1998, oral reasons in the course of argument. A transcript of the proceedings on that day is available. I would dismiss the motion so far as it concerned order 6. 25 As regards the notice of motion filed on 6 April 1999, the first matter dealt with in it has become redundant as a result of the stay. It seeks orders that I not hear the matter further pending leave to appeal or appeals to the Full Court of this Court and potentially the High Court. In essence that application was in aid of the leave to appeal against the orders which ultimately gave rise to the stay which I had granted this morning. It seems to me that it has ceased to have any significance one way or the other and I would dismiss the motion accordingly in respect of it. 26 The second order sought by the motion is that I transfer to an alternative Full Bench the matters presently before the Full Bench on the basis in essence that Branson, Finn and Hely JJ wrongly determined matters in a way Mr McKinnon is not happy with. He says that the Full Court put in jeopardy his case by making it more likely that it would be stayed and particularly by not ordering transcripts and other material relevant to his appeal. There is nothing that has been put before me that suggests that anything the Full Court of this Court did was wrongful on that occasion. There is no reason why, even if I had power, I should order that a bench differently constituted should hear Mr McKinnon's appeal. 27 No doubt in various applications it is possible for a single judge to exercise the powers of a Court of Appeal but what in essence Mr McKinnon would like me to do is arrange for another Full Court to give orders differently from those which the previous Full Court did. I do not propose to do that and would strike out that motion accordingly. 28 The third order sought is that the orders made by me on 19 and 20 November be suspended pending Mr McKinnon's appeal. As I have stated, the proceedings being stayed, that order too has become redundant. Accordingly I would strike out the whole of the motion filed on 6 April. 29 I direct Mr McKinnon to pay the respondents' costs of the motion dated 6 April 1999. Given that the motion dated 25 January 1999 is still partially on foot I will reserve costs with respect to it. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill