Alikhani v The Queen

[2002] HCATrans 413

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B91 of 2001

B e t w e e n -

ANTHONY EDWARD VONHOFF

Applicant

and

JONDARYAN SHIRE COUNCIL

First Respondent

NOMINAL DEFENDANT

Second Respondent

Summons

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 28 AUGUST 2002, AT 10.45 AM

Copyright in the High Court of Australia

MR K.D. DORNEY, QC:   May it please the Court, I appear with MR J.B. ROLLS for the applicant, who is also the applicant for special leave.  (instructed by Shine Roche McGowan)

MR S.C. WILLIAMS, QC:   May it please your Honour, I appear with my learned friend, MR S.A. McLEAN, for the respondents.  (instructed by Wonderley & Hall)

HIS HONOUR:   Yes.

MR DORNEY:   Your Honour, I hand up an outline of submissions, a draft order and ‑ ‑ ‑

HIS HONOUR:   Thank you, Mr Dorney.  I will just look at these, Mr Williams.  You have a copy of them, I take it?

MR WILLIAMS:   Yes, thank you, your Honour.

HIS HONOUR:   The point in the case is whether something is a motor vehicle, is it not?

MR DORNEY:   It is, your Honour, yes.

HIS HONOUR:   What was the object?  Did it have wheels?

MR DORNEY:   It certainly – it was what one calls a front‑end loader.  It has various names, but it is generally known as a front‑end loader and it was doing work which was for the repair of a water pump.

HIS HONOUR:   Assuming that it was not a motor vehicle, why would not the Jondaryn Shire Council have the means to ‑ ‑ ‑

MR DORNEY:   They might, but the action was out of time, your Honour.

HIS HONOUR:   I am sorry, I do not ‑ ‑ ‑

MR DORNEY:   Under the new provisions of the workers compensation legislation, being a worker, he was, in a sense, out of time for all the time limits that had to be met and all ‑ ‑ ‑

HIS HONOUR:   Right.  So he really had to succeed, in effect, under the Motor Vehicles Insurance Act or he missed out?

MR DORNEY:   Yes, that is right, your Honour.

HIS HONOUR:   I see.  What was the ratio of the court’s decision holding that it was not a motor vehicle?

MR DORNEY:   Essentially, it came down to whether it was a vehicle used for the maintenance of road transport infrastructure and ‑ ‑ ‑

HIS HONOUR:   Is that an exception or is ‑ ‑ ‑

MR DORNEY:   If you are that, you are not a motor vehicle.

HIS HONOUR:   Exactly, yes.

MR DORNEY:   Yes, and we submit, of course, that, in fact, it was not used for road transport infrastructure and the court said you are fixing a pipe which is even on the footpath on the designated road and therefore it must be for road transport infrastructure.

HIS HONOUR:   I see.  So really the point is as narrow as that, in the end: whether putting a pipe under a road or fixing a pipe on or about a road is doing the work of road infrastructure.

MR DORNEY:   “Infrastructure” is the word, your Honour, yes.  We submit it had nothing to do with infrastructure.  We were merely fixing a pipe.

HIS HONOUR:   I think you gave me the Court of Appeal decision.  I did not look at it.

MR DORNEY:   I think in the affidavit there was only the outline of the submissions, your Honour.

HIS HONOUR:   And Judge McGill, what did he decide?

MR DORNEY:   Judge McGill decided in our favour.  He found, in fact, that it was not for the use of – or the maintenance road transport infrastructure and it was a 2:1 decision of the Court of Appeal.

HIS HONOUR:   Who ‑ ‑ ‑

MR DORNEY:   The President agreed with Justice Williams and Justice Holmes dissented.

HIS HONOUR:   All right.  What is your attitude to the application, Mr Williams?

MR WILLIAMS:   Your Honour, the respondents do not oppose order 1 that is sought by the applicant in the draft order.

HIS HONOUR:   I will just find that, Mr Williams.

MR WILLIAMS:   Which is attached to the submissions, your Honour.  It is the last document, at least in my copy.

MR DORNEY:   It is between the outline of submissions of the case, your Honour.

HIS HONOUR:   Yes.  And you seek costs, I suppose, do you?

MR WILLIAMS:   We do, your Honour.  Pursuant to Order 60 rule 6(3), the cost burden ordinarily falls on the applicant.  There is no reason to displace that and we would ask your Honour to certify for counsel.

HIS HONOUR:   It is difficult for you to oppose costs, Mr Dorney, is it not?

MR DORNEY:   The only argument we have, your Honour, is, in fact, we did ask for them to consent.  Understandably the discretion is to be exercised by your Honour, but we asked them to consent to the application.  That was not forthcoming.  The two exhibits are – pages 24 and 25 of the exhibit show the letter that we requested and the letter of response, which says we will neither oppose, nor consent.  Our submission is in such circumstances there ought to be no order as to costs.

HIS HONOUR:   It is probably proper though, is it not, to adopt that attitude?  This rule was introduced only fairly recently, was it not?

MR DORNEY:   It was, I think, in – no, there was an amendment in 1996, your Honour.

HIS HONOUR:   And I think that arose out of a concern that we have a lot of applications which people were not doing anything on and the lists were being clogged up and there was uncertainty about whether matters would proceed.

MR DORNEY:   Yes, indeed.  Your Honour, in this case, of course, what the applicant’s solicitor did on the expiry date, if you like – that is the date before the deemed abandonment – was, in fact, to give to the Registrar the very document that he could have filed that day, just asking for some advice as to whether its content, form and layout were correct.  So, ironically, if he had actually filed it rather than hand it to the Registrar on that day, there would have been no deemed abandonment.  We submit in that particular context, given the requests that were made, it is ‑ ‑ ‑

HIS HONOUR:   But you still would have had to have come here even if Mr Williams’ client had consented, would you?

MR DORNEY:   We would still have to have brought an application to the Court, your Honour, yes.

HIS HONOUR:   And there would still be an appearance on the other side, at least out of courtesy.

MR DORNEY:   Your Honour, the proposition is that we do not have to make personal appearances, of course, before your Honour.  The matter could have been dealt with on the papers.  But there being, in fact, this particular approach by the respondent, we submit that this appearance was necessary rather than having it being dealt with on the papers.  I do not think I can add anything.

HIS HONOUR:   All right.  I do not need to hear you, Mr Williams.

I will make an order in terms of order 1 in the draft.  I will order that the applicant pay the respondents’ costs of the application.

What about the second respondent, Mr Williams?

MR WILLIAMS:   I appear for both respondents, your Honour.

HIS HONOUR:   All right, pay the respondents’ costs of the application and I will certify for counsel. 

There is nothing further, is there?

MR DORNEY:   There is nothing further, your Honour.

HIS HONOUR:   All right.  I am just going to adjourn the Court because we have a video link.

AT 10.53 AM THE MATTER WAS CONCLUDED