Burke v The University of Adelaide

[1990] HCATrans 241

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A3 of 1990

B e t w e e n -

PHILIP DAMIAN BURKE

Applicant

and

THE UNIVERSITY OF ADELAIDE and

THE UNIVERSITY OF ADELAIDE

STAFF ASSOCIATION

Defendants

Application for expedition

DEANE J

DAWSON J

TOOHEY J

Burke(S) 1 12/10/90

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 OCTOBER 1990, AT 11.47 AM

Copyright in the High Court of Australia

MR P.O. BURKE: With respect, if it please the Court, could

I attempt to apply in summary fashion under

Order 58 rule 17? I have filed an application with

a supporting affidavit in Adelaide on 4 October.

DEANE J:	I am at a loss, I am sorry.
MR BURKE:	I seek to apply in summary fashion under the

provisions of Order 58 rule 17 seeking a direction

to the Registry.

DEANE J:  I am sorry, is your matter in the list?

MR BURKE: Well, no, I am applying in summary fashion

because I am seeking to have it heard at the end of

the session, Your Honour .. Is that not a proper

approach? How else do I - - -?

DEANE J:	What is the name of the matter?
MR BURKE:	My name is Burke and the application No is

A3 of 1990. I have a copy of the documents here.

DEANE J: Well, Mr Burke, if the matter is not listed, the

ordinary course would be to raise it, if time

permits, after the matters that are listed have

been dealt with.

MR BURKE:  I am just announcing my presence in that case,

Your Honour.

DEANE J: Very well, but you will appreciate that people who

have had their matters listed are entitled to

priority.

MR BURKE: Certainly, quite so.

DEANE J: Very well.

AT 11.49 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 4.19 PM:

DEANE J:  Mr Burke, you will appreciate that the Court

simply cannot, on leave matters, on a day set aside

for leave applications, sit indefinitely and just

keep going on and on when matters have been listed

but if you can explain to us briefly what it is

that you wish to raise with the Court we will

endeavour to give it some attention.

Burke(5)	2	12/10/90
MR BURKE:	Yes, Your Honour.	I have a special leave

application, the books for which were filed some

time ago.	The Registry has said that they can fit
it in on 16 November.	What I am seeking is an
expedited hearing of that.	The position is, to

make it different, because it has to go interstate,
because we missed the hearings in Adelaide two

months ago, both the respondents have indicated

that they will not contest either my motion for

dispensation or the application for special leave

if they are held interstate.

DAWSON J: Could I ask just one question first, Mr Burke?

You have complied with the order made by

Mr Justice Brennan, have you?

MR BURKE:	Yes, Your Honour.
DAWSON J:	I see. So, there now is appeal books and the

like filed?

MR BURKE:  Yes, Your Honour, they were filed on 15

September.

DEANE J:  And that is, in the ordinary course, to be in the

list on 16 November?

MR BURKE:  In Melbourne. My problem with that is that I

understand it is almost impossible, assuming

everything went well which, of course, is a big

assumption, for the appeal to be heard before the

summer break. That puts me under considerable

problems financially. That is one reason. The

other reason is I do not - - -

TOOHEY J:	I am sorry, could I interrupt you?
MR BURKE:	Yes.
TOOHEY J:	I may have misunderstood something you said

earlier, Mr Burke. I thought you said the matter

was to be heard in Melbourne.

DEANE J: That is the leave application.
MR BURKE:	Yes.
TOOHEY J:	The leave application.
MR BURKE:	The leave application has been set down.

TOOHEY J: Well, do you mean, if

MR BURKE: Well, yes, that is assuming that the

dispensation - - -

Burke(S)	12/10/90
TOOHEY J:	We are speaking now of the substantive appeal if

leave is granted, are we?

MR BURKE: Well, I am looking two steps ahead. I am

assuming I have been granted dispensation and

assuming - still, I have to look ahead.

TOOHEY J: Right. Yes, I follow, thank you.

MR BURKE:  My basis for asking an expedited thing is, apart

from the fact that it does affect me badly

personally, that I submit with respect, in the

affidavit that I have filed -

DAWSON J:  It is a bit premature. You are asking for

an expedition of the appeal.

MR BURKE:  No, no, I am asking for an expedition of the

motion for dispensation and the special leave

application, so that all those things going well,

that there would be some possibility - it would not

be ruled out. I understand it would be virtually

impossible if the special leave - supposing I got

to the stage of special leave and supposing it was

granted on 16 November, I understand it would be

virtually impossible for the appeal to be heard

before the summer break.

DAWSON J: That is what I am saying, you are not objecting

to the November date for the hearing of the

application?

MR BURKE: Yes, I am.

DAWSON J: Are you? I see.

MR BURKE:  I certainly am. And the point is because both

respondents have said that they are not prepared to

go interstate, they are not prepared to contest the

matter, I am in the position of being able to - I

am prepared to go to Perth .or to Canberra on

6 November, or Perth next week whenever it is, the

22nd.

DEANE J:  Mr Burke, you have the advantage of us. Who are

the respondents? The respondents are the

University of Adelaide and the University of

Adelaide Staff Association?

MR BURKE: Yes, Your Honour.

DEANE J: Well now, has any application been filed for

expedition or for, what, dispensing with - - -

MR BURKE:  Yes, all of that has been done. Well, the notice
of motion was filed at the same time as the special

Burke(S) 4 12/10/90

leave application back on 9 March.	I have filed
the summons - - -

DEANE J: Mr Burke, you should not assume we have any

knowledge of this. So far as we are concerned, you

have just descended on a leave day to deal with

listed matters - - -

MR BURKE: Quite so.

DEANE J:  - - - and got up and expected us to somehow deal

with this matter.

MR BURKE: Well, no, I am -

DEANE J: Well, what are you asking us to do now and why was

not some application put on which is returnable

before us now?

MR BURKE: With respect, I filed the documents here which I

have here, an affidavit in support and an

application seeking the expedition. I filed that

on 4 October which is 10 days ago - well, it was

eight days ago. For reasons which I have been
unable to determine, the Registry has not formally

issued it. That is, as far as I am concerned -· I

spoke to Mr McCluskey yesterday and the position is

still I see no reason why it was not. It seems to

me that is something which should be done but does

not destroy the validity of it from my point of

view.

DEANE J: Well, that would have been because the way this

Court sits, it was impracticable to give it a

return date before 16 November.

MR BURKE:  The problem that I had with that was that I could

not understand why, if I were prepared to go to

Perth and Canberra - some of the things that were

said to me struck me as manifestly - seemed to me

to be manifestly incorrect.

DEANE J: Yes. It is pointed out to me these matters can be

dealt with by a single Judge.

DAWSON J: Well, the expedition matter could be.

MR BURKE:  The expedition, certainly, yes. The other two -

one of them necessarily, and the other one

desirably, would require a Full Court.

TOOHEY J: Would you be any better off if you got an order

for expedition because you are proceeding on the

assumption that if you got an order for expedition

and that an order for special leave was granted,

that your substantive appeal would be heard before

the end of the year?

Burke(S) 12/10/90

MR BURKE: Well, I was hoping at least not to rule it out as

utterly impossible. I have no experience of that.

DEANE J:  I hate to tell you, it would be a most

extraordinary thing in my experience on the Court

if, except in the most exceptional circumstances of

urgency, a matter could be brought on, and mainly

because it means displacing other matters. The

Court's list has been completely fixed already for everything except, as I understand, one week in

December and that is in the process of being fixed

now.

DAWSON J: Well, you would have seen the volume of business

that the Court has to deal with and appreciate

that, Mr Burke.

MR BURKE:  Yes, I appreciate that, Your Honour. I have not

any comment to make on that. I cannot comment on

that except that perhaps this is - it seems to be a

clear-cut legal thing rather than matters of fact.

I would not imagine it is much - - -

DEANE J: Well, most of the matters that come here are.

MR BURKE: Well, of course.

DEANE J: Well now, there are two aspects of this. One is

as to the application: it is to dispense with the

requirement of the rules that requires you to be

represented by counsel, is that - - -?

MR BURKE:	Yes, Your Honour.
DEANE J:	As to that, and I am only speaking for myself

because we have not reached any decision, but the
ordinary approach would be that one Court of three

Judges should not predetermine that·. That is a

matter for the Court dealing with it which is

likely to be differently constituted.

MR BURKE: Dealing with the special leave application?
DEANE J: Yes.
MR BURKE:	I can see there would be good reason for them

being dealt with together, yes, - - -

TOOHEY J:	You are not asking us to split the application for dispensation and the application for special
leave, are you?

MR BURKE:  I was not. No, I certainly was not.

TOOHEY J:  You are really asking that both be heard on an

expedited basis?

Burke(S) 6 12/10/90

MR BURKE:	Yes.
TOOHEY J:	Now, if one cannot be heard on an expedited

basis, then there is no point in any order being

made.

MR BURKE: Well, I suppose if the order for dispensation is

made I know where I stand.	I know that I am - if
it is not made, I mean then -

TOOHEY J: That does not really answer Justice Deane's point

to you, does it, that the Court before whom your

application for special leave is to be heard is

really the Court most appropriate to deal with your

application for dispensation?

MR BURKE:  Quite so. I would agree with that, yes.

DAWSON J: And perhaps I should not say so but you would be

better served in doing it that way.

MR BURKE:  I have always felt that is what the Court would

want to do;	how the Court would want to approach
it, yes.

DEANE J:  Mr Burke, as you have observed, we have been

consulting. We are not concerned so much about

there being no formal summons before us although

ordinarily there would be. If the position were

otherwise, we would be concerned about service on

the respondents of the application for expedition

but you tell us that they have no opposition to

that, is that so?

MR BURKE:  They have both written and advised the High Court

in writing. They have told me, as I have set out

in my affidavit, one had said probably and the

other one had told me that was going to happen.

DEANE J: But the real problem is twofold: one is as a

practical matter, the only Court lists dealing with

special leave applications between now and

16 November are absolutely full and we do not feel

inclined to - I mean, look, we started sitting at

9.30 this morning.

MR BURKE: Quite so.

DEANE J: It is now 4.30.

MR BURKE:  But I am prepared to go to Perth or Canberra on

the 22nd or 6 November.

DEANE J: Well, the Perth list is absolutely full,

unfortunately. Indeed, I possibly should not say

this, it seems to me there is already too much in

it. Well now, when you reach that stage the

Burke(S) 7 12/10/90

difference between bringing the matter forward a

week or two weeks if time could be found certainly

will not produce the result that the appeal comes

on this year and that is just inevitable.

MR BURKE: Well, I have to accept what you say on that.

DEANE J: That being so, the only thing we can really do is

to indicate that the application for dispensing

with the requirements of the rules should be made

to the Court dealing with the application for

special leave in Melbourne and to leave the matter

in the list there.

TOOHEY J:  Mr Burke, do you have some sort of indication

that the application for special leave and the

application for dispensation will be heard in

Melbourne on 11 November?

MR BURKE:	Yes, 16 November, yes.
DEANE J:	Do you agree?
DAWSON J:	I agree with that, yes.

TOOHEY J: Yes, I agree.

DEANE J: Naturally, we would like to say we will hear every

litigant's case right now but - - -

DAWSON J: Not at half past four.

MR BURKE:  I cannot think of anything to say, so I guess I

will have to accept that.

DEANE J: Well, if there is anything further you would like

to say, please feel free to do so.

MR BURKE:  I think I have covered all the ground. I think I

will have to leave it at that.

DEANE J: Thank you, Mr Burke.

AT 4.33 PM THE MATTER WAS ADJOURNED SINE DIE

Burke(S) 12/10/90