Justice Ian David Francis [Hey FRANK] Callinan, of the High Court of Australia.

written by Russell G H Mathews BCom BSc LLB BA
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Callinan J. has ordered that the High Court not accept my application for leave to appeal as filed.  This was referred to him by the Deputy Registrar, of the High Court, Ruth Cheetham on the stated basis that she believed it was an abuse of process, frivilous or vexations.  My ground of appeal was basicaly that the Supreme Court of Queensland is CORRUPT.  Well, of course, if a court is corrupt, then every decision of that court has to be worthless and a nonsense.  That is hardly frivilous.  Most court actions involve some party potentially losing, but those cases cannot be dismissed although they are certainly likely to cause vexation to both parties.   Callinan J directed it not be accepted so he must have decided that it was one of those three.   Did he find it an Abuse of Process?  Let's consider Callinan's record on Abuse of Process.

Justice Goldberg of the Federal Court  found that in 1986 Ian Callinan committed a breach of professional ethics.     As detailed below, in the Four Corners report as referenced herein, and the decision of Justice Goldberg in the Federal Court of Australia, Ian Callinan advised his client, Companies associated with George Herscu, to commence an action in the federal court to buy time and avoid paying  the company, Whites Industries, who had contracted with Callinan's clients to build Caboolture Park Shopping Centre, and had actualy constructed it as per the contract.  Callinan advised those clients, "you could not win any litigation if put to the test"Ian Callinan and Michael Meadows of solicitors Flower and Hart had a brainchild as Justice Goldberg called it.  It was for Herscu to start legal proceedings first, alleging that the builders had deceived him, and sue White's for fraud.   White Industries as a building business had a reputation, hard won and very valuable, of integrity in their dealings.   This was defamatory and cost Whites greatly.   SURELY THIS IS ABUSING THE PROCESS OF THE COURT.   I do not know about others, but I would not think highly of the character of a person who would do as Callinan has.  I am sure Callinan is not alone as a barrister in doing or recommending/advising such.

The written advice has been produced in evidence.  You might ask the reason that a supposedly intelligent person like Callinan would put such a minefield in writing.  Well there is such a thing as legal professional privilege [lpp] .  This means that Callinan's advice should never have come to light and he would not have expected it to be public.  He does not own the privilege in the documents/communiques.  That belongs to the client.   The client Caboolture Park Shopping Centre went into liquiidation.  I guess that may be the reason that it came to light.  Regardless, the lpp has been waived.   Usually, lpp would apply.  While the barrister has advocates immunity [ai]
  the client normally would not have immunity, and so would not disclose it by waiving lpp, intentionally anyway.   I think it could be reasonably assumed that Callinan would have expected these communiques, to remain secret.   How often has he written such dynamite, that has remained confidential due lpp?   In fact, how often has such communiques where a clear abuse of the legal process is shown been oprotected by lpp?  

How does the Supreme Court of Queensland  [SCQ] enter the picture?   Callinan was accepted to practice in the Federal Court of Australia [FCA]. Can the FCA discipline lawyers who appear before it?   It does not have the ultimate power of striking off, as the FCA does not go through the process of admitting lawyers to practice.  The FCA accepts lawyers to appear before it because they have been admitted to practice by a state's Supreme Court.  

I do not really wish to be sued so maybe I should just quote others and refer the reader to various articles, from most reputable organisations like the Australian Broadcasting Corporation, on the web.   In that article, the transcript of the ABC Four Corners' Program of 14 September, 1998, investigating matters surrounding  Ian Callinan J. of the High Court of Australia, reporter Liz Jackson states: "When the Coalition Government appointed Ian Callinan to the High Court of Australia, they knew they were in for controversy. Six months down the track the legal profession is bitterly divided over whether Justice Callinan's past behaviour warrants a parliamentary inquiry into his professional ethics."

[Of course, as a barrister, Callinan had advocates immunity [ai]   and that extended to his drafting the matter to go to court. Ai means that the parties who feel aggrieved, cannot sue him.  Of course, when a Lawyer is admitted as a lawyer and so enabled to practice for a fee, he accepts and agrees to extend his primary duty to the court, which duty has priority over his duty to his client.  People can consider what it says about courts where it is accepted by the court that the barrister has repudiated his duty to the court and instead promoted his duty to his client to primacy  over the duty to that court, yet the court takes no action against the barrister.]

Liz Jackson further states: "
Justice Callinan may well be unsure about the strength of that support - his host at this dinner backs the call for a inquiry into the recent findings by Justice Goldberg of the Federal Court that 12 years ago Ian Callinan committed a breach of professional ethics."    

Further, Liz Jackson comments: "Lawyers should not, for example, start baseless proceedings which defame their opponents, simply to cause delay." 

I feel compelled to simply quote a little more of the Four Corners program.

The story as it unfolds in Justice Goldberg's judgment begins in Caboolture Park shopping centre, about an hour and half north of Brisbane. Back in late 1985 the building company White Industries entered into a contract to build this shopping centre with property developer George Herscu. Back then, the now disgraced Herscu was the largest property developer in the country.

By the end of December 1986, White's had virtually finished the centre and it was open for trading just in time for the Christmas rush. But the builders were getting a little bit worried, Herscu owed them several million dollars for the work they'd done, and there seemed to be some problem, some hold up, with the last set of payments.

Unknown to them, Herscu had decided that the whole project had cost far too much and he wasn't going to pay White's one more cent.

Herscu sent his general manager off to his solicitor, Mr Meadows from the legal firm Flower and Hart. Flower and Hart is one of the oldest, most establishment legal firms in Brisbane.

This is a company that still signs off its letters - 'We are, dear Sirs, yours truly, Flower and Hart.' But Herscu didn't get the advice he wanted. In a letter dated the 16th December 1986, Flower and Hart told Herscu that despite the fact there'd been millions of dollars of cost overruns in the construction of the shopping centre, his case for not paying White's was very weak.

"As your company proposed these sums, we cannot see how it can be said Whites misrepresented the position here."

Liz Jackson:
But the solicitor offered a small ray of hope.

"If you wish we can discuss the matter with Mr Callinan QC, to see if he can come up with an avenue of relief to your company."

Herscu was worried that White's would sue him for their money and he wanted action fast. So the following night Mr Meadows from Flower and Hart went to see Ian Callinan QC. .

[the Upshot of this case was heard in:  

CABOOLTURE PARK SHOPPING CENTRE PTY LTD (IN LIQUIDATION) and WHITE INDUSTRIES (QLD) PTY LTD v. FLOWER AND HART (A FIRM) Nos. QG198 of 1986 and QG174 of 1992 FED No. 667 Courts - Practice and Procedure (1993) 117 ALR 253  where Flower and Hart were ordered to pay what is termed a "wasted costs order", for the legal costs that were wasted by the legal proceeding initiated for an ulterior purpose of initiating legal proceedings for other than the purpose of winning the legal point.


Liz Jackson:
Ian Callinan and Michael Meadows agreed that Herscu's case for not paying White's was weak but one of them - and the court said it appears it was Callinan, came up with a strategy by which Herscu could at least buy some time.

Their brainchild as Justice Goldberg called it was for Herscu to start legal proceedings first, alleging that the builders had deceived him, and sue White's for fraud. Their advice was faxed to Herscu's company the following day.

The fax spelt out that suing White's for fraud and deception could "secure some bargaining position for you" but stated bluntly, that Herscu should clearly understand "you could not win any litigation if put to the test".

Ian Barker, President, NSW Bar Association:
You don't advise proceedings which have no hope of success. You don't allege fraud or criminal conduct against somebody if it has no - no basis. Those are the rules and they're very basic.

Bret Walker, SC, President, Law Council of Australia:
Q: Most people feel that it is a lawyer's job to do whatever they can...to assist their client. That is their first and primary and only duty to win - that that's their duty.
A: That's a travesty. It's a travesty because we're not talking about gun-fighting, we're not talking about prize-fighting, we're talking about the administration of justice. And one thing that justice doesn't permit is no holds barred, no rules - attempts to win. Now, if the clients can't try to win by any means fair or foul, obviously neither can the lawyers.

Liz Jackson:
Three days before Christmas 1986, Ian Callinan and his junior drafted up the allegation of fraud so that Herscu could start legal proceedings. Justice Callinan later said in the witness box that he believed at the time that Herscu might have a weak, but arguable case.  Nevertheless, Justice Goldberg concluded that the allegation of fraud was made without any factual basis, to give Herscu, in Callinan's words, the advantage of having struck the first blow. And it worked.   At White's head office in Sydney, they were stunned and then angry when the news came through. The success of their multi-million-dollar business relies on maintaining a reputation for integrity, and they were worried that clients would believe there's no smoke without fire.  Herscu's lawyers had given him the means of legally defaming them."

I recommend that you read the full article transcript of the Four Corners program.   It makes you think about our legal system.

How many others in the court System would do as Callinan had done?   The SCQ has done nothing against Callinan.  How many others in the SCQ would do to us what Callinan was instrumental in doing toWhites Industries?