Bhagat v Cowley Hearne Solicitors

[2000] HCATrans 388

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S203 of 1999

B e t w e e n -

HARI BHAGAT

Applicant

and

COWLEY HEARNE SOLICITORS

First Respondent

GRANT SMITH
TYNDALL FUNDS MANAGEMENT (NSW) LIMITED
TYNDALL FUNDS MANAGEMENT AUSTRALIA LIMITED
MICHAEL WILKINS
SIR RON BRIERLEY
GARY WEISS

Second to Seventh Respondents

Application for an adjournment

GLEESON CJ
GAUDRON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 SEPTEMBER 2000, AT 9.37 AM

Copyright in the High Court of Australia

________________

MR R.D. WILSON:   May it please the Court, I appear for the first respondent.  (instructed by Ebsworth & Ebsworth)

MR B.J. PRESTON, SC:   I appear for the second to seventh respondents.  (instructed by Mallesons Stephen Jaques)

GLEESON CJ:   Mr Wilson and Mr Preston, have you seen the communications that have come in to the Registry from Mr Bhagat?

MR WILSON:   The first respondent has, your Honour.

MR PRESTON:   I have too.

GLEESON CJ:   First of all, he wants the matter stood out of today’s list on the ground that he is ill and unable to be here.  He also wants it stood out for rather a long time.  What is your attitude to each of the aspects of that application?

MR WILSON:   So far as the first respondent is concerned, we oppose the adjournment.  We cannot point to any prejudice but, in so far as the matter is to be adjourned, we would wish the matter to be adjourned for a short period in either October or November, subject to the convenience of the Court’s dates.
GLEESON CJ:   I cannot claim to have understood completely the significance of the time element in this, but I have an impression from reading the papers that the consequence of adjourning it until March or April of next year would be to achieve a large part of the practical effect that is sought to be achieved by this special leave application anyway, would it not?

MR WILSON:   Your Honour, I do not know the answer to that in terms of achieving the result of the special leave application.  I certainly know it is designed to assist him in relation to other proceedings, but I cannot assist in relation to the specific forensic purpose.

GLEESON CJ:   What is your attitude, Mr Preston?

MR PRESTON:   We also oppose the adjournment.  In relation to your Honour Justice Gleeson’s question, I would submit that,   yes, that does achieve his goal.  In the decision of the Court of Appeal at page 148 of the application book, Justice Mason, who gave the principal decision, refers to the fact that what was being sought was an extension of time within which to appeal for, in a sense, an unlimited period of time whilst he was able to litigate other proceedings which he has commenced.  That was one factor they took into account as to why it was inappropriate to extend time to appeal.  So we would also say that the Court ought to hear the matter.  He has put forward his written submissions as to what ought to be dealt with and the Court can deal with it either on the papers or hear us.  If the Court were minded to grant an adjournment, then it should be on the next occasion that the Court is able to hear the matter.

GLEESON CJ:   Yes.  I think the next occasion on which we have one of those short lists is 17 October.

KIRBY J:   It is fairly hard for the Court to refuse an adjournment, given a certificate with medical evidence from overseas indicating that he is unable to come here today, so proper principle would seem to suggest that an adjournment, though a short one, should be granted.

GLEESON CJ:   The evidence that he has provided in support of the application is evidence of a certificate from the Indian Red Cross Society dated 30 August 2000 that he is unfit to travel for at least two weeks from 30 August 2000.  So we will stand the matter out of today’s list and we will adjourn it until 17 October 2000.  We will reserve costs of today.

AT 9.42 AM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 17 OCTOBER 2000