Aboriginal Legal Service & Mills- Re Ausn Securities Commission

[1996] HCATrans 387

IN THE HIGH COURT OF AUSTRALIA

Registry  No C2 of 1995

In the matter of -

An Application for Writs of Prohnibition against THE AUSTRALIAN SECURITIES COMMISSION

First Respondent

ARTHUR WILLIAM WALLWORK

Second Respondent

JONATHAN PETER CADDICK

Third Respondent

and

ABORIGINAL LEGAL SERVICE LIMITED

First Prosecutor

BRUCE ROBERT MILES

Second Prosecutor

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 DECEMBER 1996, AT 9.32 AM

Copyright in the High Court of Australia

_____________________

MR H.C. BURMESTER:  If it please the Court, I appear for the respondents.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Burmester.

MR BURMESTER:   Your Honour, this matter comes before your Honour as a result of a summons taken out on 4 December.

HIS HONOUR:   We had better see if there are any other appearances.  Call the matter outside the Court, officer.

THE COURT CRIER:   No appearance, your Honour.

HIS HONOUR:   Thank you.  Yes, Mr Burmester.

MR BURMESTER:   Your Honour, this matter comes before your Honour as a result of a summons taken out on 4 December.  Since that time there have been a number of developments.  Firstly, I understand a notice of discontinuance was filed yesterday by the first prosecutor as well as a notice of change of solicitor, and I have been asked to mention that Rosenblum and Partners now appear on the record as solicitors for the first prosecutor.  So that there is a notice of discontinuance in relation to that party.

HIS HONOUR:   That follows the provisional liquidation of the first prosecutor?

MR BURMESTER:   That is right, your Honour.

HIS HONOUR:   What is the position with service on the second party?

MR BURMESTER:   With service, your Honour, I have here the original ‑  the affidavit of service, if I could hand that to the Court?  Your Honour will see from that

that attempts were made to contact Mr Miles, the second prosecutor, that service was affected on the last known address for Mr Miles, the principal solicitor of the Aboriginal Legal Service, but no response has been received.

HIS HONOUR:   All right.  Just sit down for a minute, Mr Burmester.  Has there been any effort to telephone this gentleman, do you know?

HIS HONOUR:   Has there been any effort to telephone this gentleman, do you know?

MR BURMESTER:   Your Honour, you should also have an affidavit of Paul Stephen Vermeesch of 10 December, which sets out the details of attempts to contact Mr Miles.

HIS HONOUR:   Yes.  Now this affidavit of Mr Gregg of 9 December, has that been filed yet?  The one you just handed up.

MR BURMESTER:   That is the original - no, your Honour, it was only received ‑ ‑ ‑

HIS HONOUR:   That can be filed in Court.  Yes.  Now, you were referring to Mr Vermeesch of 10 December?

MR BURMESTER:   That affidavit, your Honour, sets out the attempts made to serve the documents, reference to the Aboriginal Legal Service originally operating out of Canberra, that Mr Miles was the solicitor on the record in the proceedings heard before this Court on 9 October.

HIS HONOUR:   Yes, let me just look at that.  He seems to be appearing for himself.

MR BURMESTER:   Your Honour, he was at all times the solicitor employed by the Aboriginal Legal Service and that was the address given on all the documents.

MR BURMESTER:   Your Honour, in relation to the second prosecutor, we would still seek the ‑ ‑ ‑

HIS HONOUR:   In relation to your summons of 11 December, order 1 or order 2?

MR BURMESTER:   Your Honour, principally the first order, that the action be dismissed.  We say there is an inherent power in this Court to do that, if it considers it appropriate, and in these circumstances, where the substance of the matter is completely spent, that seems an appropriate course to follow.

HIS HONOUR:   Yes, all right.  Just sit down for a minute, Mr Burmester.  I will work out some orders.  You seek order 3 as well?

MR BURMESTER:   Your Honour, I do not press that matter.

HIS HONOUR:   No, but I think it might be a vain hope.  Now, is that the correct description of the process, the notice of motion of 29 February 1996?

MR BURMESTER:   That is the notice of motion, as I understand it, referring the matter to the Full Court.

HIS HONOUR:   Will that completely get rid of all proceedings to make that order?  What is the initiating process?

MR BURMESTER:   Your Honour, there was an originating process seeking certain orders nisi and as a result of the first hearing Justice McHugh referred only this one matter to the Full Court, so there is only this one issue dealt with in this notice of motion, which was issued after the hearing before his Honour Justice McHugh.

HIS HONOUR:   That is right, but you want the whole proceeding to go, do you not?

MR BURMESTER:   We do want the whole proceeding to go.

HIS HONOUR:   Well, it should be the initiating process as well.

MR BURMESTER:   Yes, your Honour, out of an abundance of caution, I would agree with that.

HIS HONOUR:   Yes, all right. 

MR BURMESTER:   Your Honour, my attention has been drawn to the transcript from the hearing before his Honour Justice McHugh.

HIS HONOUR:   Yes, I have got that here.

MR BURMESTER:   On page 11 of that transcript he said he adjourned the application:

so that notice on the application may be given accordingly.  Otherwise, the application be dismissed.

So that as I read that, there would only be the notice that was then given that would still be on foot.

HIS HONOUR:   Yes, all right.  Have you got a copy of his Honour’s orders of 15 February 1995?  I think that has got the key to it.  Just take a moment to find it.

MR BURMESTER:   Yes, your Honour, I now have that.

HIS HONOUR:   I think, if one looks at order 3, that dismissed the application, except for the orders that were made.  What you now seek, I suppose, is a discharge of those orders.

MR BURMESTER:   Yes, your Honour.

HIS HONOUR:   And if they are gone, the rest is gone.  Order 4, that has been performed.

MR BURMESTER:   As far as I know, yes, your Honour.

HIS HONOUR:   Yes.  It is really the direction, I suppose.

MR BURMESTER:   It is that direction and - yes.

HIS HONOUR:   And 2 has been performed; you have given notice.  They amended their draft order nisi, I suppose.  Yes, they have done that, so there is no point in setting that aside.  They have effected service under 4.

I will order that the direction by Justice McHugh made 15 February 1995 be discharged.  I note that the effect of this order is to bring the proceeding to an end.

MR BURMESTER:   Thank you, your Honour.

AT 9.46 AM THE MATTER WAS CONCLUDED