Applicant S1815 of 2003, In the matter of an Application for leave to issue a proceeding

[2007] HCATrans 546

[2007] HCATrans 546

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S194 of 2007

In the matter of –

an application by APPLICANT S1815 OF 2003 for leave to issue a proceeding

GUMMOW ACJ

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 19 SEPTEMBER 2007, AT 9.36 AM

Copyright in the High Court of Australia

MR D. KNAGGS:   I appear for the applicant.  (instructed by Cross Law)

HIS HONOUR:   Yes, Mr Knaggs.

MR D. KNAGGS:   Your Honour, I should say two things.  One, I am relying for my professed instructions in this matter on presumption of continuance and the balance of probabilities, meaning I could not get hold of my client in any way since I was told on Friday that the matter would be an oral application instead of a chambers written application.

HIS HONOUR:   Right.

MR KNAGGS:   The phone number I had for him is no longer answering in his name, so ‑ ‑ ‑

HIS HONOUR:   Well, it is a question for you really.

MR KNAGGS:   It is a question for me, but I wanted it on record in case it ever comes up in the future.

HIS HONOUR:   Yes.

MR KNAGGS:   The other thing is I am now employed by Bruce Hocking, Solicitor, and I am no longer a sole practitioner so I shall have to undertake to the Court that within the next two days I will file a notice of that change.

HIS HONOUR:   Yes, that is right.

MR KNAGGS:   It is not significant otherwise.

HIS HONOUR:   Yes.  All right, now, do you want to add anything orally to the material I already have?

MR KNAGGS:   For safety’s sake, I think I should, your Honour.  One of the points that the applicant makes, and he does this in his ground number 2.1, you will see, your Honour, in the third line of 2.1, which is on the very face of the application for special leave that was rejected, he refers to 15 October 1990 when his uncle was killed and the applicant was injured.

HIS HONOUR:   Yes, can I bring you to what I think is the statutory problem?  Do you have section 33 of the Federal Court Act?

MR KNAGGS:   No, your Honour.

HIS HONOUR:   Well, section 33(2) says:

an appeal shall not be brought to the High Court from a judgment of the Court constituted by a single Judge.  However, this subsection does not apply to a judgment of the Court constituted by a single Judge exercising appellate jurisdiction of the Court in relation to an appeal from a judgment of the Federal Magistrates Court.

That does not apply here because what this was was an application for orders nisi made of Justice Gyles which was refused.

MR KNAGGS:   Yes.

HIS HONOUR:   Now, that produced the result that leave was needed to appeal any further within the Federal Court from that interlocutory decision of Justice Gyles.  That leave was refused by Justice Nicholson.  Justice Nicholson in refusing the leave and according to the authorities was not exercising appellate jurisdiction, he was refusing to open the door to it was the basic idea, I think.

MR KNAGGS:   Yes.

HIS HONOUR:   That produces the result that we are back with 33(2) of the Act, that you cannot come here – you could not get special leave even if everything else was in order.

MR KNAGGS:   Yes, I see what your Honour says.

HIS HONOUR:   You could not get an appeal here from a single judge constituted – Federal Court constituted by a single judge ‑ ‑ ‑

MR KNAGGS:   Yes.

HIS HONOUR:   ‑ ‑ ‑ and that seems to me to be the problem.  That would have the consequence that to grant the leave now sought would only produce in the end a futility and more expense.

MR KNAGGS:   Yes, your Honour.  Did your Honour just observe that Nicholson J was not pursuing an appellate ‑ ‑ ‑

HIS HONOUR:   That is right.  He was refusing leave to appeal.  You see his order, paragraph 3 of his orders ‑ ‑ ‑

MR KNAGGS:   Yes:

The application for an extension of time to file and serve and application for leave to appeal and for leave to appeal be dismissed.

He does deal with the merits, but ‑ ‑ ‑

HIS HONOUR:   He did, he did, and that is often done to leave the litigant to think that, as it were, they had been looked at rather than just pushed aside.

MR KNAGGS:   Yes.

HIS HONOUR:   But that having happened, I do not think your client can have another go in this Court.

MR KNAGGS:   Yes.  Your Honour, could I ask for this?  Would your Honour allow me to put in any written submission on that point within the next week because in a week I can confirm my instructions, and maybe I will be told to keep out of this?

HIS HONOUR:   Yes, very well, and then having received those written submissions I will dispose of it one way or the other with a disposition without any further argument, without any need for further argument.

MR KNAGGS:   Yes, your Honour.

HIS HONOUR:   Would that be convenient?

MR KNAGGS:   Yes, your Honour.

HIS HONOUR:   I think it would be the best way to do it.

MR KNAGGS:   In my submissions I was going to say something to your Honour about the fact that the applicant was injured by losing a finger at the same time as his uncle was killed, according to the certificates, and they are certificates that are not doubted by the judges, and that is what ‑ ‑ ‑

HIS HONOUR:   Well, you do that if you wish, but the real point is the threshold point.

MR KNAGGS:   I know that, your Honour.

HIS HONOUR:   All right.  The authorities include Collins v The Queen 133 CLR 120 at 122, Coulter v The Queen 164 CLR 350 at 356, and United Mexican States v Cabal 209 CLR 165 at 179.

MR KNAGGS:   It is exceedingly gracious of your Honour to pass those on to me.

HIS HONOUR:   All right.  Now, they are talking about specifically leave in this Court but the parity of reasoning would apply I think to leave within the Federal Court.  All right, well, you will file a notice of change of solicitor I imagine it will have to be?

MR KNAGGS:   Yes, it will be.

HIS HONOUR:   And put in any written submissions you wish to put on or before 3 October, and I will then dispose of the application on the papers.

MR KNAGGS:   Yes, your Honour.

HIS HONOUR:   Very well.  I will now adjourn.

AT 9.44 AM THE MATTER WAS CONCLUDED