Bennett v Binge

[1989] HCATrans 225

~

• 'i

•

IN THE HIGH COURT OF AUSTRALIA	';;.~
Office of the Registry

Sydney No Sl04 of 1989

B e t w e e n -

ROBERT EDMUND BENNETT

Applicant

and

MICHAEL JOHN BINGE, BRUCE EDWARD

BONEY, DENNIS IAN DENNISON, DAVID

JACK DENNISON, MICHAEL RONALD

DUNCAN, MICHAEL DOUGLAS DUNCAN,

LONNIE IAN DUNCAN, STANLEY ROBERT

HIPPI, ALEXANDER HIPPI, REGINALD

CYRIL HINCH, LINDSAY PHILLIP HINCH,

THOMAS NEVILLE HOLTEN, RICHARD

CHARLES MACKIE, CHRISTOPHER CARL
McGRADY, COLIN JAMES WIGHTMAN and

NOEL ANDREW WHITTON

Respondents

Application to remove a cause pursuant tc section 40(1) of the Judiciary Act 1903

Office of the Registry

Sydney No Sl02 of 1989

B e t w e e n -

ROBERT EDMUND BENNETT

Applicant

Bennett

MASON CJ
DEANE J
GAUDRON J

and

MICHAEL JOHN BINGE, BRUCE EDWARD

BONEY, DENNIS IAN DENNISONA DAVID

JACK DENNISON, MICHAEL RON LD

DUNCAN, MICHAEl. DOUGLAS DUNCAN,

LONNIE IAN DUNCAN, STANLEY ROBERT
HIPPI, ALEXANDER HIPPI, REGINALD

CYRIL HINCH, LINDSAY PHILLIP HINCH,

THOMAS NEVILLE HOLTEN, RICHARD

CHARLES MACKIE, CHRISTOPHER CARL
McGRADY, COLIN JAMES WIGHTMAN and

NOEL ANDREW WHITTON

Respondents

Application for special leave to appeal

C2T32.J;/IH 1 12/10/89

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 12 OCTOBER 1989, AT 12.09 PM

Copyright in the High Court of Australia

1:1R G.L. DAVIES, QC:  May it please the Court, in the first

matter I appear with my learned friend,

1:1RS M.J. WHITE, for the Attorney-General for the

State of Queensland (instructed by the Crown Solicitor

for Queensland), and in the s~cond, I appear with

1:1RS M.J. WHITE for the applicant. (instructed by

T.J. Arthur)

1:1R A. ROBERTSON:  May it please the Court, in each of those

matters I appear for the respondents. (instructed

by Ms M.I. HERPS, Aboriginal Legal Service)

(Continued on page 3)

C2T'32/2(TH	2	12/10/89
Bennett

MASON CJ:  Mr Davies, is there any opposition to the

application for removal?

MR DAVIES:  I do not think so, Your Honour.

MR ROBERTSON:  No, there is not, Your Honour. We concede

it arises under the CONSTITUTION .....

MASON CJ: Yes, well, will it be sufficient if we make an

order in terms of the notice of motion? I do not

seem to have the notice of motion in the papers

here, Mr Davies. Can you indicate to me - I

have them now. Well, you ask for an order in terms

of the notice of motion dated 23 August 1989 and it

asks for removal of that part of the cause that

involves those two questions?

MR DAVIES:	Yes, Your Honour.
MASON CJ:	Very well, the Court will make an ~rder in terms

of the order sought in the notice of motion.

MR DAVIES: If Your Honour pleases.

MASON CJ:  Now, Mr Davies, in case there is any difficulty

about what the Court can do in relation to the case

when it is removed, Mr Justice Smart having, as

it were, made an order, we ought perhaps to list

the application for special leave at the same time.

It is conceivable that if the order has been taken

out pursuant to Mr Justice Smart's judgment, the

Court may need an appeal in order to· give it

jurisdiction to deal with what the judge has

already done.

MR DAVIES:	Yes.
MASON CJ:	So, we would propose, subject to any comment that

you or Mr Robertson may make, to list the application

for special leave at the same time as the part of

the cause that is removed when it is listed for

hearing.

MR DAVIES:  As Your Honour pleases.

MASON CJ: Is that satisfactory to you, Mr Robertson?

(Continued on page 4)

S2T32/3/JH	3	12/10/89
Bennett
MR ROBERTSON:	Yes, Your Honour.	I understand Your Honour

to be referring to the sort of problem that arose

in the STATE BANKING case where there was a question

of an order against which there was an appeal and

the relationship between the appeal and the removal.

MASON CJ:  Yes.

MR ROBERTSON:  Yes. So far as the respondents are concerned,

Your Honour, they would seek - which is a slightly

different question - an order that the applicant for special leave, as a condition of the special leave, be ordered to pay the respondent's costs in

any event and this is foreshadowing something which

does not arise and also that the applicant should be

ordered to pay the costs of the special leave

application itself. If I could make this further

connnent: ~here are really two difficulties with the

special leave application. One is that there is a

contest as to the facts, that is that the facts are

not closed. Your Honours will see from the application

book that one of the grounds of appeal which will be

removed under the special leave application,if leave

were granted, is that His Honour Mr Justice Smart

erred in his findings of fact-and there is also,

which is not in the application book but which has

been filed in the New South Wales Court of Appeal, a

notice of cross appeal by the respondents. It may be

convenient if I hand a copy of that to the Court.

MASON CJ:  Yes.

MR ROBERTSON:  I would hand five copies. I do not wish to

take Your Honours through it but only to underline

the fact that there is the question of fact, or a

series of questions of fact, which is still open.

MASON CJ:  Well, Mr Robertson, at the moment, as you will have

gathered, we are not minded to grant special leave to appeal and it seems to me the submissions that

you make are really related to that application.

MR ROBERTSON:	Indeed, Your Honour.
MASON CJ:	And, it seems to me that it would be more

convenient for the Court to consider the application

for special leave in the light of hearing argument

on the questions that have been removed. It would

be open to you then to make the submissions that you

are making at the present time.

MR ROBERTSON:  Yes, Your Honour.

C2T32/3/JH	4	12/10/89
Bennett

MASON CJ:	Perhaps that is the best way of dealing with it.
MR ROBERTSON:	Yes, the only point about that, I suppose,

that I would make, Your Honour, is that the

question that is being removed is a question which
is largely in the abstract and it may be necessary

to deal with, I advert to at least, the version

of facts as found by Mr Justice Smart. So, I was

really raising the relationship between the

special leave application, which is not yet to be

dealt with, and matters that have been removed

under section 40.

MASON CJ:  Mr Robertson, it ought to be possible for counsel

to be prepared when the matter is listed for hearing

to deal with the grounds that are raised in the

projected special leave application. In other words,

when the Court becomes fully seized of the matter

on hearing that part of the cause that is being

removed, it may transpire, as you say, that a more

advantageous course "M)U.}_d be to grant special leave
and to involve the appeal, the hearing of the appeal
with the hearing of the cause that is removed.

And, it should be possible for counsel to prepare the

case in such a way that if the Court decides to take

that course, they can deal with all issues. And, that

is what you have in mind, I take it; you want to

ensure that if we merely list for hearing the cause

that is removed, we may be cutting ourselves off from

the desirability of looking at the material that would ,

arise in the event that the appeal is heard.

MR ROBERTSON:	Yes, Your Honour, indeed.
DEANE J:	But, it will be incumbent upon you to remember to

expressly raise the matters of costs that you want to

raise or otherwise the Court

will not take it upon itself to go into it.

MR ROBERTSON:  No, I will bear that in mind, Your Honour.

If Your Honurs please.

MASON CJ:  Very well. That part•:Of the cause will be removed,

as I have indicated, and the application for special

leave will be listed along with the cause removed.

MR ROBERTSON:  If Your Honour pleases.

AT 12.18 PM THE MATTER WAS ADJOURNED SINE DIE

C2T32/4/JH	5	12/10/89
Bennett