Burke v Bohines Pty Ltd

[1990] HCATrans 196

A	-!)1 AUSTRALIA,1c-
->},.')))'$-««.-<-<''

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A42 of 1988

B e t w e e n -

PHILIP DAMIAN BURKE

Plaintiff

and

BOHINES PTY LTD and ANOTHER

Defendant

Application for directions

BRENNAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 23 AUGUST 1990, AT 5.55 PM

Copyright in the High Court of Australia

Burke(2) 1 23/8/90

HIS HONOUR:  What is the nature of this application,

Mr Burke?

MR P.O. BURKE: Well, once again, there is a summons and a

very short affidavit setting it out. The nature of

it is, to put it briefly, I applied to

Justice Deane in chambers last year at this time,

(a) for an order under Order 58 rule 17 and, (b),

as I see it, initiating a claim for a misfeasance

in public office against Mrs Lawson. Justice Deane
dismissed that application pointing out that I was

at liberty to appeal or to seek to appeal. I filed

a notice of appeal after giving it some thought. It

seemed to me that, in fact, I had an appeal as of

right. I filed a notice of appeal immediately

which was within the seven days specified. Is that

Mr Thew behind you? I am not sure.

Anyway, there was a letter came back telling

me that in fact there was a mistake, that what I

should be seeking was leave to appeal because of

the provisions of section 34 to the Judiciary Act

and there should be an application for leave to

appeal, there was no appeal as of right. So,

I -

HIS HONOUR:	What is your application today?
MR BURKE:	My application - well, the point was that we then

had an impasse between myself and Mr Jones because

I expressed my doubts about this to Mr Jones and

Mr Jones said he did not feel he had to explain but

he stood by his position that it was an application

for leave and not an application for - and not an

appeal as of right. So then I thought I - since I

could not understand that, having given it a lot

more thought and for reasons which I set out,

therefore I applied for a ruling on that from a

Justice.

HIS HONOUR:	And how did you apply for the ruling?
MR BURKE: Well, as I say, I sent the summons - as with the

other one, the one that we have just dealt with.	I
sent a summons, affidavit and exhibits - a few
exhibits - in the same envelope addressed to the
Chief Justice on 2 July which were then passed on
to the Registry by the Chief Justice's associate.

HIS HONOUR: Yes. Well, I think this is a misconceived

application, Mr Burke. Have you filed a document?

MR BURKE: Well, that was my way of filing it, Your Honour.

HIS HONOUR:	Have you filed - - -
Burke(2)	23/8/90

MR BURKE:  I have filed - no. The next thing was that the

Registrar said that the heading was not correct.

HIS HONOUR: Well, whatever it might be, have you filed a

notice of appeal?

MR BURKE:  A notice of appeal was filed last year within

seven days.

HIS HONOUR:  What is the problem now?

MR BURKE: Well, the problem is what is the correct heading?

Should it have been an appeal as of right or should

it be an application for leave to appeal?	I
maintain that it should be a - - -

HIS HONOUR: Let it be clearly understood: the Registry is

not involved, however helpful it might try to be,

in giving litigants advice. If you choose not to

comply with the Rules, that is your prerogative.

If you do comply with the Rules then, of course,

things go smoothly. Now, if you have got a

document filed and it is not in order then you will

carry the consequences of that.	Now, what is the
problem in the light of that?	You can do whatever
you wish to do.

MR BURKE:  Because it has not been explained to me and it is

not a lot clear to me. I am not unintelligent. If

there is something wrong with it, it has not been

made clear to me what it is.

HIS HONOUR:  I see.

MR BURKE:  I have-to stick by my guns on that. It has not

been made clear to me and I believe that I am

correct and I seek a ruling from a Justice on

whether - if I am wrong, fine.

HIS HONOUR: Well, I do not think there is any proceeding

pending before me, sitting as a Justice of the therefore, I do not propose to make any order with

regard to it.

MR BURKE:  Can I object on the record to that ruling,

Your Honour - - -

HIS HONOUR:  You can object to it, yes, certainly.

as a possible basis of an appeal?

HIS HONOUR:	The Court will now adjourn.
Burke(2)	23/8/90

'