Burke v Attorney-General (South Australia) A12-02,A229-03) SLA

[2003] HCATrans 314

[2003] HCATrans 314

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A11 of 2002

In the matter of –

An application for removal by PHILIP DAMIAN BURKE

Application for removal pursuant to section 40 of the Judiciary Act 1903

Office of the Registry
  Adelaide  No A228 of 2003

In the matter of –

An application by PHILIP DAMIAN BURKE

Application for special leave to appeal

Office of the Registry
  Adelaide  No A12 of 2002

B e t w e e n -

PHILIP DAMIAN BURKE

Applicant

and

ATTORNEY-GENERAL FOR STATE OF SOUTH AUSTRALIA

Respondent

Application for removal pursuant to section 40 of the Judiciary Act 1903

Office of the Registry
  Adelaide  No A229 of 2003

B e t w e e n -

PHILIP DAMIAN BURKE

Applicant

and

ATTORNEY-GENERAL FOR STATE OF SOUTH AUSTRALIA

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 15 AUGUST 2003, AT 9.32 AM

Copyright in the High Court of Australia

__________________

MR P.D. BURKE appeared in person. 

GUMMOW J:   Yes, Mr Burke. 

MR BURKE:   May it please the Court, I appear for myself in this matter.  I have a bit of a cold, so I excuse myself in advance.  Your Honour, can I just check that you have that little bundle of extra documents?

GUMMOW J:   Yes, we do.  We thought, Mr Burke, it might be best if we were to look at all your matters together and you address them as you think fit together.

MR BURKE:   Yes.  How much time would you be allowing me then?

GUMMOW J:   We were thinking 30 minutes.

MR BURKE:   30 minutes.  I had actually prepared – I have three submissions.  The main one in relation to the Attorney‑General’s matter, that should be less than 20 minutes.  I have two others:  one referring to what I see as a supplementary matter, the A11 and A228, and that would be less than 10 minutes, and if I had time I would revisit, in another one, the University of Adelaide Act, with a closer look at the Wilson Case, and that would be less than 10 minutes also, your Honour.  So that would be ‑ ‑ ‑

GUMMOW J:   Well let us see how we get on.

MR BURKE:   See how we go.

GUMMOW J:   Yes.

MR BURKE:   Yes, I thought your Honour would say that.

GUMMOW J:   Now, you wish to start first with the Attorney‑General’s matter?

MR BURKE:   Yes, your Honour. If I may remind the Court, this book is a joint one for two applications: A12 of 2002 is for the removal from the Supreme Court of South Australia under sections 40 and 41 of the Judiciary Act for reopening and reconsideration of the Full Court appeal in action 1420/95 from Judge Burley’s refusal of an extension of time for setting down an appeal from Justice Perry, or of the right to apply for that reopening and reconsideration.  And A229/2003 is for, alternatively, special leave to appeal from that decision directly of Justice Perry, based on the same background facts and findings and on the same legal issues and hence relying on the same affidavit. 

Actually, what I want to do today is just to fill in some gaps in my original written material, your Honours, with reference to that bundle, then quickly, if time permits, perhaps make some summarising references.  If I may ask the Court to turn first then to page 216.  That was a supplementary affidavit that I put in, in relation to a couple of things, the apparent irregular entry of that decision of the Full Court, which came in late. 

Just a quick point there.  I did not become aware of this filing in the Supreme Court until receiving the respondent’s own summary of argument, that is, well after initiating the removal application.  It would be my respectful submission that it was then too late for the respondent to redeem himself simply by a late service and that I had then become entitled to have this Court declare the entry of that order invalid for the purposes of these proceedings.  If the Court would not concede to that, I would submit that at least the respondent should be estopped from arguing to the contrary, on the basis that they led me to believe that it would not be sealed.  I just make that submission on general terms.

GUMMOW J:   Now, could we just look at A229 of 2003 for a minute.  That is an application for special leave from Justice Perry, I think.

MR BURKE:    Page 229 of the book.

GUMMOW J:   No, matter No A229.

MR BURKE:    I am sorry, yes.

GUMMOW J:   That is an application for special leave from Justice Perry.

MR BURKE:    In the alternative, if the removal were to be refused.

GUMMOW J:   I think you need an extension of time here for that.  Do you seek that extension?

MR BURKE:   I think my affidavit seeks that on the basis that having prepared initially the removal, that obviously took up all my efforts and endeavours and I have been actually working on this whole system since this happened really, since these documents got under way.  But, yes, that is under ‑ ‑ ‑

GUMMOW J:   Order 69.

MR BURKE:    ‑ ‑ ‑ in that affidavit – no.  Do you want me to refer to that.

GUMMOW J:   No.

MR BURKE:   Yes, I need an extension of time and I do seek that under those powers of the Court or the inherent jurisdiction, I think – either one or the other.

GUMMOW J:   Please proceed with the balance of what ‑ ‑ ‑

MR BURKE:   I also have a slight hearing difficulty, so I will keep my left head turned to you.  Did you say proceed?

GUMMOW J:   Yes.

MR BURKE:   My point about the irregularity of the sealing, in any case, I would say it does not matter, because I believe that if the Court does not agree with that, that for the reasons which I explored in my supporting affidavit from page 24 on in the book, at paragraphs 7 to 8, threshold issue, it is my respectful submission that the Supreme Court is not functus officio with regard to the Full Court decision, because of the specific statutory provisions in the Supreme Court Rules.  This is quite consistent, in my submission, with Bailey v Marinoff, which I believe is the pertinent authority in this area, even though there have been more liberalising dicta since.  But I think I am consistent with Bailey v Marinoff in referring to the statutory provisions under the Supreme Court Act.  I will leave it at that, if I may.

I will come in a minute to item 2 in that bundle shortly, but I just say now that the point of that material is to submit that there are broader considerations in this case of mine for suggesting, with great respect to the High Court, that it would be timely now if it were to consider the case Wilson and the makeup of university councils in Australia.  I will come back to that in a minute.

Going back to that supplementary affidavit of 30 April, which is on page 218, I refer to the judicial membership of Adelaide University Council and I express a doubt about the accuracy of something in the calendar.  I just want to say that I attempted to verify – I gave a copy of this document to the University and asked them if they would care to verify it, but they declined to comment.  I do not think that is particularly important, but I did attempt to verify what I had said.  It seemed to me it should have been 6 March 1997, not 6 March 1996, but they were not prepared to comment, and I do not think it really makes a lot of difference.

Continuing then the substance of what I have to say today, as I have indicated at page 222, the supplement to my reply, I would wish mainly today to rely on the Wilson Case with regard to one aspect of the perceived incompatibility, in my opinion, of the learned justice’s handling of this action by the Attorney‑General, namely, his membership of the University Council, which I see as incompatible.  I point out in relation to that aspect, from my supplementary affidavit at page 219, that the learned justice’s initial election in November 1995 was to a council which had distinguished State MPs from both sides of politics, while his subsequent appointment ‑ appointment, as opposed to election – under new provisions of the University of Adelaide Act from August 1996 was as just one of seven persons in an essentially open category.

In that context, I would suggest, with great respect, that the majority judgments in Wilson apply here almost in their entirety.  If time permits, I will come back and attempt to justify that statement a little bit more closely, and that is the third item which I referred to.  For the time being, however, I will merely pose the following questions as relevant now against the background of that case.  I hope it is not necessary for me to emphasise that I in no way suggest bad faith or impropriety on the part of the learned justice or the Attorney‑General.  Rather, my concern, following Wilson, is with perceptions, despite sometimes long historical practice.  The point about historical practice was made in Wilson, if I just may quickly look ahead on page 20 of that report.  The joint judgment there said:

However, disconformity of practice with constitutional requirements is no inhibition against truly expounding the text and implications of the Constitution.

Having made these qualifications to start with, I wish to pose three questions as relevant now against the background of the Wilson Case, in relation to the learned justice’s handling of this matter.  My first question is this, should the learned justice ‑ ‑ ‑

GUMMOW J:   This is Justice Perry?

MR BURKE:   Justice Perry, yes, I am sorry.  Should Justice Perry have sought to be elected in the light of Wilson, with hindsight, should he have sought to have been elected to a university council in view of the close association involved with senior MPs from both sides of politics, including, of course, the government with the then Attorney‑General, and in view also of the delegated legislative and executive role of the council under the University of Adelaide Act?  I pose this question even though there is a historical practice of such participation in Australian university councils, and it might seem a pity if councils were to be deprived of such skills and advice.  That is my first question. 

My second one, diverging a little bit, should the Supreme Court have assigned Justice Perry to take over this action by the Attorney‑General, in view of the learned justice’s then membership of the council and in view of the dominating role of my disputes with the university in all my Supreme Court litigation, which has been the subject of examination in this action?  That is my second question, which is slightly aside.

My third question, was Justice Perry’s subsequent appointment to the council, as opposed to his original election, consistent with the amended Act from August 1996 – from 6 March 1997, apparently – was that appointment valid in view of the arguable perception of lack of independence, of whatever degree, involved, by contrast with an election, in an appointment, and in view of that appointment, more importantly perhaps, as one of an essentially open class of seven members under the new section 12(1)(b) of the Act?  There is a copy of that Act in the book, but I do not know that we will have time to look at that.

Whether that appointment was effective from March 1996 or March 1997, it must presumably have been known about well in advance of the decision against me in the Attorney‑General’s action in February 1997, and perhaps even before the trial in July 1996.  I would respectfully submit that the learned justice should not have been appointed by the Supreme Court to control this action, because of these previous issues.

Secondly, now going on perhaps to the real substance of this this morning.  Attempting, with great respect, to apply the three‑stage Wilson test, which is set out on page 17 of the case, I would suggest the following answers to the questions raised there about Justice Perry’s university council membership.  The first question was – and if the answer to this was, no, of course, then there was no issue.  But the first question in that joint judgment raised was, was there too close an involvement with the government by the judge who was being appointed? 

And I say, yes, there was indeed too close an involvement with the government initially, because of the senior MPs, after his election of November 1995, but particularly in view of the delegated legislative and executive powers of the council under the University of Adelaide Act and in view of the Attorney‑General’s multiple involvement with this action, Attorney‑General v Burke, and again amplified by Justice Perry’s own proposed and actual involvement in this case from early 1996, at least. 

There was too close an involvement, in my submission, so therefore the other two questions arise.  So I say, in relation to the other two questions in that three‑stage test, there was an additional perception by ordinary reasonable members of the public of some lack of independence resulting from his appointment, not election on its own, but particularly, and more importantly, to an open category of seven with no statutory prescription of his own role as a judge as being independent of any – and I quote from Wilson, I think – “of any instruction, advice or wish of the government”.  He was simply appointed to this category of seven members, without any statutory provision qualifying that or restricting that or proscribing that.

Then the third aspect of Wilson.  There also was an unlikelihood, in the absence of specific qualifying provisions in the Act, that his membership of council would be – I am quoting some of these words: 

free of political influence or without the prospect of exercising a political discretion –

and, a fortiori, there was an unlikelihood, again, that there would not be a public perception of such influence.  So that is my respectful attempt to answer the questions posed on page 17 of Wilson, that three‑stage test.

Lastly, on this issue, and I now simply wish to return to item 2 that I mentioned earlier, I would wish to remind the Court, if I may, with respect, that there is presently under way in Australia a debate about the best methods of university governance.  I refer, of course, to the Federal Government’s Nelson Inquiry and Reports, and also the proposed changes to the University of Adelaide Act currently before the South Australian Parliament, with which the Court may not be so familiar.  But I also refer to the report in The Australian newspaper’s Higher Education Supplement of Wednesday, 23 July 2003, which is in that item 2, as to a conference on university governance in Melbourne organised by the National Tertiary Education Union.

The Court would, in any case, be aware of the recent scrutiny of corporate governance in Australia and overseas, resulting in such reports as Professor Hilmer’s “Strictly Boardroom” of 1993, and the others referred to in the short extract, which I have included in that bundle item 2, from Ford’s Principles of Corporations Law, the most recent edition.  The point I wish to make in relation to this material is that a common feature is an emphasis on the need for a maximum degree of independence from the corporate executive of the board of directors and its committees, that is, for the board and committees, subcommittees of the board, to have at least a majority of independent directors.

But the Higher Education Supplement article, in highlighting comments by Murdoch University lecturer David Holloway to that conference – Mr Holloway suggested that councils, in their search for efficiency, needed to learn from “emerging best practice measures” as they “moved further towards the new managerialism”, and to have: 

more independent members to break the domination by vice‑chancellors and executive members. 

I am quoting.  I would hope myself that, at the same time, they would not forget – members of university councils – that they have a special trusteeship in relation to academic freedom.

The main point of this material in item 2 today is for me to suggest, with great respect, that apart from my own direct concerns it would be very timely if the High Court were now to consider the use of judicial participation on university governing bodies, whether as elected or appointed members, and what statutory provisions in the University Acts would be necessary, consistent with Wilson, if I understand that case correctly, to permit this to properly continue, if it is to continue.  I respectfully suggest also that this case may be an appropriate vehicle for that consideration.

The issue of the learned justice’s parallel involvement with a court case like mine, largely concerned with university disputes, and the further one of the Attorney‑General’s reported comments a day after my lodging an appeal from Justice Perry’s decision, lend, I would suggest, an additional dimension to the present instance, of course.

I have dealt with other aspects of Chapter III incompatibility, as I have perceived them, in my main affidavit, paragraph 5, “Constitutional Issues Arising”, and they include, notably, jurisdictional, what I would describe as ex debito justitiae errors in relation to the treatment of the section 39 proceedings and the associated rights and duties of the parties. The relationship of these proceedings, this legislation, to other Supreme Court provisions and to a university visitor’s jurisdiction, and so on. I will leave it at that.

I have just mentioned that the Attorney reported comments in The Advertiser five days after the learned justice’s decision in February 1997, and one day after my notice of appeal was lodged, as my letter to the Attorney of 20 April, which is in the book at 146 to 151, makes, I think, clear.  See, for example, paragraph 5, “Justification for Perceived Influence”, of that letter.  I see that as a quite important, if secondary, aspect of my application for removal and reopening.

Also, I have addressed the propriety of my raising the issue in that paragraph 5, but if I may also mention it now, the Northern Territory NAALAS Case was quite similar in relation to the remarks made and the main difference between that case and the present one, apparently, was that there the trial was still pending, as opposed to just the appeal here.  The Northern Territory justice commented there that witnesses were likely to be intimidated, and I can say that the reported comments about me were quite unsettling to me.  I may add that an abusive, ridiculing phone message by an anonymous caller was left for me within 24 hours of that report appearing.

Lastly, the other major aspect of my removal application is a submission that the learned Justice Perry was, in fact, exercising federal jurisdiction, within the meaning of section 40 of the Judiciary Act, in dealing with Supreme Court Act section 39, the VL provisions, because of the common law background shared by this State provision with Order 63, rule 6 of the High Court Rules and the essentially identical concepts and closely similar terminology involved.

I have expressed my second and third thoughts respectively on that topic in the supplementary affidavits from page 194 of the book, and my supplementary reply at page 223.  That is my main – I do not know how long that took.

GUMMOW J:   Yes, Mr Burke, go on.

MR BURKE:    I refer to the other matter, the other book, and possibly come back to the other thing later.  This other book, of course, relates to complaints that I made about actions of registry and sheriff’s office staff.  Most of the actions complained about in this matter, A11 and A228 – the removal application, alternative special leave application – occurred subsequently to one particular week in February 1997, namely, 20 to 26 February, during which four significant things happened. 

On 20 February, Justice Perry delivered his decision in the Attorney‑General’s action.  Four days later, I lodged my notice of appeal, very promptly, of course.  The next day a report appeared on pages 1 and 3 of The Advertiser of comments by the then Attorney‑General on the action, which were severely critical of me personally, while acknowledging that an appeal had been lodged.  The next day, 26 February, the learned justice extended that – less than 24 hours notice to me, I may add – and settled the terms of his order, giving some discretion to the plaintiff Attorney‑General as to the scope of her application, which courts they should apply to.

Also, and I am repeating myself a little bit, the learned justice had been elected 15 months earlier, again, to this week in 1997, in November 1995 to the university council, to which the State Parliament had appointed under the University of Adelaide Act, as it then stood, various senior MPs from the major parties, including, of course, that of the Attorney and the government.

As a result, in my respectful submission, the actions by the registry and sheriff’s office, which I complained of in these documents – those actions, like the Attorney’s comments, had a significantly unsettling effect on me and a decidedly negative influence on the efficient researching and general preparation from my appeal from the decision of Justice Perry.  They must also, in my respectful submission, after serious consideration of this point, have contributed to and reinforced a perception by the ordinary reasonable member of the public of government influence on the Supreme Court and its officers, judicial and non‑judicial.

Accordingly, I submit, with respect, that this joint application, A11/A228, is, in a real sense, connected with the subsidiary to the parallel joint application which I have just been talking about, A12/A229, seeking a removal in relation to the Attorney’s action.  Consistent with this view, as my notice of motion probably makes clear, on page 2 in the small book, I saw my two earlier versions of the supporting affidavit in this matter to be essentially supplementary to the 1420 of 1995 removal notice, rather than supporting, as now, a separate removal application, and I had wondered then if the High Court would see it as part of the same High Court proceeding.

The perceptions which I have referred to generally were, I submit, more precisely as follows – the perceptions of the ordinary reasonable lay member of the public.  The motivations of the actions of registry and sheriff’s office would be perceived by that ordinary reasonable member of the public as having been contributed to, and significantly so, by the direct influence of the very well‑publicised comments of the Attorney on 25 February, and indirectly by the influence of those remarks on and through the learned justice and the Supreme Court, more broadly – the Supreme Court judicial officers, more broadly.

Also, a reasonable member of the public would perceive the ensuing adverse treatment of my complaints by a Supreme Court Master as being a function, to some extent, of those same direct and indirect influences, but particularly when independent denials of natural justice could be identified, as I claim to have done.  Similarly, I would submit, with respect, the ordinary reasonable lay member of the public, with knowledge of the learned justice’s membership of the University of Adelaide’s governing body, its council, especially when aware of the parliamentary‑appointed component of his fellow members, would perceive a further contribution, direct and indirect, to the political influence on registry and sheriff’s office staff, and then – later I am complaining about this on the learned Master.

May I add to that, that the initial public perception about the Attorney’s comments would have been amplified from the start, in my most respectful submission, by an understanding that the plaintiff had initiated, as I understand it – that is, the Attorney – in his ex officio quasi‑judicial capacity, the Supreme Court section 39 proceedings against me, as well as being, of course, the formal plaintiff in the action.

Also, the learned justice, who had been elected in November 1995 to the council with delegated legislative and executive powers under the Act, as I have mentioned before, was appointed to take control of the action against me from April 1996, but the basis of most of my Supreme Court litigation was a set of claims against the University of Adelaide.  I had sought to pursue these claims in the first place and in the main, but not completely within the university visitor’s exclusive jurisdiction, by way of a declaration in the Supreme Court’s supervisory jurisdiction. 

This declaration was to be as to the respective comparative scopes of the visitatorial and the Supreme Court’s ordinary jurisdiction, because, as the Court may remember, there was a considerable doubt at that time, pre the 1987 Thomas decision in the House of Lords, as to where that line should be drawn, between exclusive jurisdiction of the visitor and jurisdiction of the Supreme Court, which, of course, is otherwise unlimited, essentially.

Thus it is my submission that Justice Perry, in sitting in judgment on these matters involving the University of Adelaide, while a member of the University of Adelaide Council constituted and authorised as I have described under the Act, the learned justice, sitting in judgment like that, gave rise, in my most respectful submission, to a reasonable perception by the ordinary lay member of the public, not only of bias favouring the university, but also of impermissible political influence, that is to say, influence incompatible with his role as a judge capable of exercising federal jurisdiction under Chapter III of the Constitution, sections 75, 76 and 77(iii) and with Judiciary Act, section 39(2). That incompatibility which I allege was then compounded, of course, by the plaintiff’s adverse comments when an appeal had just been most promptly lodged.

Finally, my experience at the hands of the Supreme Court directly in attempting to pursue my appeal – still unheard six years later, despite my best endeavours, my full‑time endeavours – and my experience indirectly at the hands of the registry and sheriff’s office would surely, in my respectful submission, cause some disquiet in the minds of the same reasonable, knowledgeable, but lay members of the public and testify further to the said incompatibility of the learned justice’s role in all this.

In summary, then, I submit, with great respect, that the consideration by the High Court of the appropriate terms for judicial participation in university governance is not only timely for the general Australia‑wide considerations which I have touched upon, but given extra immediacy by its relevance to the present joint application, both of them.

My remaining prepared submission revisits the University Act in relation to Wilson in a little more detail.

GUMMOW J:   Thank you.  I think we are out of time almost.

MR BURKE:   Out of time?

GUMMOW J:   Yes, almost, but continue if you wish.

MR BURKE:  

Constitutional compatibility of function is not a question of judicial sensitivity.  Nor is it a question of the desirability –

I am quoting from the Wilson Case –

of employing judicial skills in order to perform a service for the Executive Government. 

Separation of judicial functions from the political ones not only avoids: 

the occasions when political influence might affect judicial independence –

but also proscribes: 

occasions that might sap public confidence in the independence of the Judiciary.  That independence is especially important in a federal system . . . The constitutional condition on the vesting of non‑judicial power in (or the conferring of a non‑judicial function on) a Ch III judge is that the exercise of the power (or the performance of the function) be compatible with performance of judicial functions as stated in Grollo.  When that condition is satisfied, judges not only are, but are seen to be, independent of the other branches of government.  The appearance of independence preserves public confidence in the judicial branch. 

In Wilson, the category of incompatibility that arises for consideration is: 

“the performance of non‑judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual Judge –

it was Justice Mathews there –

to perform his or her judicial functions with integrity is diminished.”

The three stage test of Wilson, which I have sought to apply here, asserts in its second stage, if I understand it correctly, that legislative provisions must make it absolutely clear the independence of the judiciary from government direction, so that doubts of the kind which arose in the Ipec Cases – the issue there was whether the Director‑General of Civil Aviation should be subject to government direction or not – those kind of doubts cannot be allowed to arise in relation to a judicial member of a university council: 

Independence from the Legislature and the Executive Government in the sense thus explained –

I am still quoting –

is essential to the constitutional compatibility of performing a non‑judicial function with the holding of office as a Ch III judge.

I will skip most of this.  An obvious advantage in having a Supreme Court justice on a university council might seem to be the resultant access to first‑class legal advice.  Yet, as pointed out in Wilson at pages 19 to 20, in relation to the ATSI Heritage Protection Act, which specifically required the reporter, who was Justice Mathews, to provide such assistance, this would contravene the long‑established rule against

Chapter III judges giving advisory opinions.  See In re Judiciary and Navigation Acts (1921).

Also, when it is pointed out that justices and chief justices of the Supreme Court have long been members of Australian university councils, and not infrequently the chancellors thereof – for example, Dr Bray and Dame Roma Mitchell, recently in Adelaide – the joint judgment in Wilson appears to suggest one answer on page 20, the penultimate paragraph: 

However, disconformity of practice with constitutional requirement is no inhibition against truly expounding the text and implications of the Constitution.

The final answer, if I have understood Wilson correctly, may therefore be that legal advice should be supplied to Australian university councils, either before or after judicial service, and the participation of the judiciary in university councils in that area and in other areas needs to be specifically described in appropriate statutory provisions.  I will leave it at that, your Honour.

GUMMOW J:   Thank you, Mr Burke.  We will take a short adjournment.

AT 10.07 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.17 AM:

GUMMOW J:   We refer first to matters A229 of 2003 and A12 of 2002.  As to matter A229 of 2003, the applicant Mr Burke seeks special leave to appeal against orders of the Full Court of the Supreme Court of South Australia.  By those orders, an order refusing him an extension of time within which to set down his appeal to the Full Court was confirmed.  Mr Burke also seeks special leave to appeal against the orders of the primary judge which were the subject of the proposed appeal to the Full Court.  It is with the decision of the primary judge, Justice Perry, that there is to be found Mr Burke’s ultimate concern.

The application to this Court for special leave is out of time.  Because there is no reason to doubt the correctness of the orders which the Full Court and the primary judge made, his applications for extension of time to seek special leave should be refused.  Any appeal to this Court, whether against the orders of the primary judge or the Full Court, would fail.

As to A12, insofar as Mr Burke seeks orders under section 40 of the Judiciary Act for removal, that application must be dismissed. This is because there is no proceeding pending in the Supreme Court which may be removed into this Court. Therefore, the necessary terms of section 40 of the Judiciary Act are not engaged here.

We turn now to matters A11 and A228. These relate to the conduct of officers of the registry of the Supreme Court and of officers of the sheriff of that court. In matter A11 Mr Burke seeks an order under section 40 of the Judiciary Act and in matter A228 he seeks out of time special leave to appeal against orders made by Judge Burley as a Master of the Supreme Court first in respect of the conduct of the officers mentioned and, secondly, in respect of an application for waiver of fees.

The application in matter A11 must be dismissed. There is no matter pending in the Supreme Court which may be removed into this Court under section 40 of the Judiciary Act.  Insofar as Mr Burke seeks special leave in matter A228, there is no reason to doubt the correctness of the orders made by Judge Burley, and therefore the extension of time is refused.

Accordingly, the relevant extensions of time are refused and the relevant applications under section 40 are dismissed. We will adjourn to reconstitute.

AT 10.21 AM THE MATTERS WERE CONCLUDED