Justice Ian Callinan, of the High Court of Australia.
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
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
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
record on Abuse of Process.
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
paying the company, Whites Industries, who had contracted
Callinan's clients to build Caboolture
Park Shopping Centre, and had actualy constructed it as per the
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.
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
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
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
[ai] the client normally would not
have immunity, and so would not disclose it by waiving lpp,
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
I do not really wish to be sued so maybe I should just quote
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
[Of course, as a barrister, Callinan had advocates
immunity [ai] and that extended to his drafting the matter
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
Liz Jackson further states: "
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
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
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
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
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.
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
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."
But the solicitor offered a small ray of
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."
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:
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.
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
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
Herscu's company the following day.
The fax spelt out that suing
White's for fraud and deception could "secure some
for you" but stated bluntly, that Herscu should clearly
could not win any litigation if put to the test".
Ian Barker, President, NSW Bar Association:
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:
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.
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
time that Herscu might have a weak, but arguable case.
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.
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.
had given him the means of legally
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?