Burke v The University of Adelaide

[1990] HCATrans 218

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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

Notice of motion seeking exemption from Order 69A

rule 11

DAWSON J

(In Chambers)

Burke(3) 1 7/9/90

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 7 SEPTEMBER 1990, AT 5.23 PM

Copyright in the High Court of Australia

HIS HONOUR:  Mr Burke, you appear in person.

MR P.D. BURKE: Appear in person, Your Honour. The two

motions that I mentioned this morning were, one, a

motion for a dispensation from the provisions of

Order 69A rule 11, and that was the principal one

that I am concerned with. The other one was an

appeal in the original jurisdiction of the Court

from a decision of Justice Deane. The whole basis

of my applying in this fashion was that my

understanding was that these matters could have

been and perhaps should have been scheduled in

Adelaide two weeks ago. I attempted to have them

done, unsuccessfully, on the basis that they should

have been scheduled and through no fault of mine,

and it seemed to me that was a basis for taking the

opportunity of seeking an expedited coming on.	In
fact, I - - -

HIS HONOUR:	Which was the rule that you were speaking of? Order 69 rule 11?
MR BURKE:	Rule 11, dispensation from the necessity for

counsel in a special leave application.

HIS HONOUR: Order 58, is it not?

MR BURKE: Order 69A rule - Order 58 rule 11 is the

instructions to the Registrar, Your Honour.

Order 58 rule 17, I think it is.

HIS HONOUR: Well now, one problem that occurs, Mr Burke, is

that are there any documents that you have filed in

relation to any application which you make or wish

to make?

MR BURKE:  I have filed notices of motion in relation to

both of those; one on last Tuesday, I think it was,

which I have in front of me, and the other one was

Friday. The Registry tells me that they do not -

they refused to stamp it. They told me that it was

not issued. It seems to me that - I cannot see on

what basis - I cannot see any -

HIS HONOUR:  So, the Registry refused to accept the

document?

MR BURKE: Well, they took it but they have not stamped it

and they say, as I understand it, that it is not

issued and therefore not filed.	The logic of this
escapes me.	I have been through the rules again
since then.	I see that the - it seems to me that

if the Registry has refused to stamp it, that is

something they should answer for. The Registry, it

seems to me, has powers under Order 58 rule 4(3)

where a procedure is prescribed for, referring a

matter - insisting that a matter be referred to a

Burke(3) 2 7/9/90

Justice if they think it is vexatious. This has not been done in this case. I am not aware of it.

They can also throw something up under rule 61 for

documents or, alternatively, under Order 58 for	it containing - it is just an improper format of
containing scandalous matter. None of these things
have been said as being the reason. The reason
that they give me for refusing to file it is unintelligible to me, it seems to me that the fact that they say they are not prepared to seal it is
irrelevant as far as it being filed properly. Now,
that is my feeling and on that basis it would seem
to me that you should have those documents before you.

HIS HONOUR:  You see, that is my problem. I have nothing

before me at all.

MR BURKE: So, therefore, in that context I would be then

making this application through this motion under

Order 58 rule 16 which is a direction to the

Registrar to, in fact, accept the documents and

refer them on.

HIS HONOUR:  So, what you say you are making is an

application to me to direct the issue of the

particular process which you wish to be issued? Is

that the application you are making?

MR BURKE: Well, the other alternative, Your Honour, is that

Order 51 rule 1(3) which relates to motions permits me to make a motion and file the documents after as

in an urgent case. On either basis, it would seem

to me that I should be able to draw this to your

attention. Whether it is on that basis or whether

it is on the basis of Order 58 rule 17, I should be

able to - you see, I was criticized in Adelaide for

seeking directions to the Registry under

Order 58 rule 17 and doing it by summons which was

then ignored by the Registry.

HIS HONOUR:  What rule 17 says is that you:

may apply ..... ex parte in a summary way for a

direction - - -

MR BURKE:	Yes.
HIS HONOUR:	That seems to overcome the difficulty of no

process before me, does it not?

MR BURKE: Well, I would have thought so, Your Honour.

HIS HONOUR:  Yes. All right, we have covered that point.

So, now the next point is what is it that you are

asking me to direct the Registrar to do?

Burke(3) 3 7/9/90

MR BURKE: Well, what I am concerned with is - it is my

basic premise that because of things the Registry
did not do in relation to these two motions, (a)

the motion for dispensation from the provisions of

Order 69A rule 11 which is this question of counsel

in a special leave application, because that was

not scheduled in Adelaide two weeks ago when it

should have been - because that was not scheduled

in Adelaide two weeks ago when everything tells me

that it could have been and therefore should have

been. I sought to have it scheduled in Adelaide

two weeks ago and I was expecting it to - what

happened was, because of the way things were

treated, it just did not come on.

I saw a problem arising two months before that

and sought an application under Order 58 rule 17 by summons which the Registry simply ignored, it seems

to be, quite improperly, and because of that that

seems to me - and on that basis I am therefore

seeking expedited treatment of that dispensation

hearing.

HIS HONOUR:  Now, what I understand you to be wanting is an

order that the Registrar take some action. Is that

right?

MR BURKE: Well, I was actually seeking to move this Court,

if possible, in this sitting that I get that

dispensation. Now, if this sitting -

HIS HONOUR: Well, either a dispensation which means that

you can file some process or an order that the

Registrar take some action in relation to some

process - - -

MR BURKE:  No, the dispensation I am seeking, Your Honour,

is dispensation from the necessity for counsel on

the special leave application.

HIS HONOUR: Well now, that is a separate point. We have

not got to that yet, Mr Burke.	The point we have
got to get to is to have some process before the

Court which will enable it to consider the matters

which are raised.	Now, as I understand it, there
is not anything before the Court.	You say you
tried to -

MR BURKE:  I filed it. They received it and I have got a

copy here with the stamp on it with their initial -

with the initial but they refused to accept it.

HIS HONOUR:  But they have not filed it?

MR BURKE: Well, they say I have not filed it. I would

argue that that is irrelevant and, in fact, they

Burke(3) 4 7/9/90

have filed it because they received it because they

have no basis for not - - -

HIS HONOUR: All right, you say they have received it and

therefore they have filed it.

MR BURKE: Therefore they have filed it.

HIS HONOUR: That is one argument. Alternatively, you say

that if they have not filed it, they should be

directed to file it?

MR BURKE:  Yes, whether retrospectively or after this

because I can still apply and file that again.

Either way, yes, but in either case I am - that

having all been done, we could then proceed to the

question of actually the motion for dispensation.

HIS HONOUR:  Well, we have not got to that yet. Can you

hand to me the process which you say has been

received and which you allege has been filed which

certainly is not before me as having been filed?

MR BURKE:  Yes. The first item is the one that I am

concerned with, Your Honour. I do not want to

press the other one at the moment, even perhaps not

at all.

HIS HONOUR: Well, the first document I have here is a

notice of motion which you attempted to file at the

Adelaide Registry of the Court, is that right?

MR BURKE:  Yes, on Tuesday, and you will see Mr Surman's

initials there - on Tuesday - taken the fourth of

the ninth. But after consultation with

Mr McCluskey, I was told that the Registry did not

consider it to have been filed. I argue that that

is invalid.

HIS HONOUR:  Yes. That is for an order that the previous

motion for dispensation which you filed or sought

to file - you did file in Adelaide?

MR BURKE:	Yes, I did. That was filed immediately at the appropriate time, on 9 March this year.
HIS HONOUR:	Be heard forthwith here?
MR BURKE:	Yes, that was what I was seeking today in this sitting.
HIS HONOUR:	Yes, and granted leave to appeal from the decision of Justice Brennan in relation to the
content of the index in a special leave
application.
Burke(3)	7/9/90

MR BURKE:  I would prefer to ignore that, Your Honour. This

was prepared in a hurry and I would not wish to

press that at this stage.

HIS HONOUR: All right. So that we are restricted now to the

question of dispensation for counsel?

MR BURKE:	Yes, Your Honour.
HIS HONOUR:	Now, to get that motion before me it would have

to be filed and therefore what you are asking me to

direct the Registrar - - -

MR BURKE:	To file it -
HIS HONOUR:	When I say "that motion would have to be

filed", the motion which you now seek to move.	The
notice would have to be filed now.

MR BURKE:  Yes, Your Honour. Either you rule that it has in

fact been filed and	that the Registry's objections
are invalid or that	it be filed now because I have
applied under Order	58 rule 17 to have it done.

HIS HONOUR:  Yes. Well now, it is obvious that such a

motion could not be heard forthwith having regard

to the hour today.

MR BURKE: Certainly.

HIS HONOUR:  In fact, what you are seeking is to make an

application that counsel be dispensed with to
enable you, in person, to make an application for

special leave. That is what it comes down to.

MR BURKE:  Yes, that is what that motion would be,

Your Honour. I do not know whether that has to be

heard by a Full Court subservient to the special
leave application, I am all of a sudden not quite

sure on that point.

HIS HONOUR: Well, that is not a matter for you to worry

about, of course. It is a matter for you just

filing the proper application and you can do that

and that is all you seek to do at the moment, is it

not, is to restrict your application to a

dispensation of the requirement that you appear by

counsel on an application for special leave?

MR BURKE:  Yes, Your Honour.

HIS HONOUR: Well now, what is the application for special

leave in relation to which you seek that

dispensation?

MR BURKE: It is between myself - you want to - - -?

Burke(3) 6 7/9/90

HIS HONOUR:  Well, I just want to know if one is in

existence, that is all.

MR BURKE:  Yes, that was filed back on 9 March of this year

following within 21 days or whatever it was of the

Full Court decision in the South Australian Supreme

Court. It relates to a matter between myself and

the University of Adelaide and another.

HIS HONOUR:  It is an application for special leave to

appeal from what decision?

MR BURKE: 

A decision of the Full - I have initiated action

against the University of Adelaide and the
University of Adelaide Staff Association in

relation to a variety of matters and I have also
specifically raised in all the process, the two

statements of claim that I have produced, the question of the exclusive jurisdiction of the

university visitor. That is one of the

important - - -

HIS HONOUR: 

Yes. Well now, where was that matter heard?

MR BURKE: 

What happened was the master struck that out for

want of prosecution. I appealed to the Full

Court - directly to the Full Court and they

dismissed the appeal. The decision was handed down

on 16 February this year and the special leave

application was filed within the appropriate time.

HIS HONOUR: In the Adelaide Registry.

MR BURKE:	In the Adelaide Office of the Registry.
HIS HONOUR:	Yes. Well, you see, I do not have that before

me at the moment.

MR BURKE: Well, once again I would submit that the Registry

is at fault in that being the case that you do not

have it before you because the notice of motion, I

believe, was filed correctly last Tuesday. If you

direct that is the case then I guess the

implication of that is that you do get it before

you fairly quickly or, alternatively, that you -

taking the other approach, under Order 58 rule 17,

as I understood you and as I agree with, once again

you can give that direction to have the documents

before you one way or the other. I have the

documents here and copies of them. They are filed

in the Registry. The question is why has the

Registry not supplied them to the Court, in my

view, and once again the Registry is at fault, I

submit.

HIS HONOUR:  Yes. What has happened to the application for

special leave?

Burke(3) 7 7/9/90

MR BURKE:  I had this difference with the Registrar about

the index. I sought back in July - there is

considerable correspondence between myself and

Mr Jones. I sought back in July a ruling under

Order 58 rule 17, with a summons, which was

eventually sent to the Registry. Mr Jones ignored

that because he said it was not properly filed. And

once again I would question the validity of that.

I eventually took another copy of that summons and

took it into the Adelaide Registry, having spoken
to him on the phone in the week before the Court

went to Adelaide, having discovered that, in fact,

nothing had been done with it, and it was then -

the date was changed to 16 August and, in fact, I

had a hearing before Justice Brennan a fortnight

ago yesterday - yesterday night.

HIS HONOUR: In Adelaide.

MR BURKE:	In which Justice Brennan ruled on the format of the book index and, as I say, I am not concerned
about that.  I was really only covering myself. I
am not prepared to press that.
HIS HONOUR:	Did you make application in Adelaide, as

Mr Jones advised you to do, for a dispensation with

respect to counsel?

MR BURKE:	I beg your pardon, Your Honour?
HIS HONOUR:	Did you make application in Adelaide for a

dispensation to enable you to appear without

counsel?

MR BURKE:  Yes, t.here was a notice of motion filed back -

the same time as the special leave application.

HIS HONOUR:  Did you make the application to anyone? You

came before Mr Justice Brennan.

MR BURKE:  No, that has not - no, that has not. That is my

point.	I would argue that that could have been
dealt with in Adelaide but because of the way

things were scheduled, in fact, there was no
possibility of that happening because the Court had

been dissolved at the stage that I got before

Justice Brennan. I tried to get before

Justice Brennan two days earlier in the week but,

of course, I got nowhere.

HIS HONOUR:  I will attempt to get a transcript of the

proceedings before Justice Brennan to see what did

happen there.

MR BURKE:  I have not seen that yet but I believe it is

available.	You see, we did not actually get around
to the - at the stage.	I mean, the Full Court had

Burke(3) 7/9/90

been dissolved at that stage - this was late on

Thursday night - and so all that Justice Brennan

got around to was ruling on the book format and

then he said there was nothing could be done about

the - - -

HIS HONOUR:  You seem to make a practice of appearing late at night, Mr Burke.

MR BURKE: Well, I am in that - I seem to be forced - - -

HIS HONOUR:  I do not mean it is your choice.

MR BURKE: Well, it is not, this position. It was my choice

in the other situation.

HIS HONOUR:  Would you excuse me for a moment?

MR BURKE: Certainly.

HIS HONOUR: Well, the application before Mr Justice Brennan

was an application under Order 58 rule 17.

MR BURKE:	Yes, Your Honour.
HIS HONOUR:	To direct the Registrar to approve the index

and associated books for the application for

special leave.

MR BURKE:	Yes, Your Honour.
HIS HONOUR:	It does not appear, so far as I can see, that there was any application made to Justice Brennan
for a dispensation with regard to counsel.

MR BURKE: Well, if you read further down you will see there

is a reference by - you see, what happened was

because I did not file books in agreement with

Mr Jones' index, therefore index ruled that the

special leave application had lapsed and therefore,

by implication, also, the motion of a dispensation.

HIS HONOUR:	I see.
MR BURKE:	Justice Brennan then brought that back on track

but it was - I was thinking that the dispensation

had to go before a Full Court. I thought that was

impossible at that stage and I did not even suggest

to Justice Brennan that he hear the motion for

dispensation.

HIS HONOUR: Well now, Justice Brennan ruled that the

special leave application, by reason of the failure

to comply with the requirements of Order 69A

rule 7, had lapsed.

Burke(3) 9 7/9/90

MR BURKE: 

Yes, 7(6), yes, Your Honour.

HIS HONOUR: 

And therefore there was no longer any point to

the application for a dispensation because there
was no application for special leave on foot.

MR BURKE: Right.

HIS HONOUR: That seems to be the position.

MR BURKE: Well, that was the position as I understood it

but then he corrected that basic position by

approving a new index which was slightly modified

from Mr Jones' but basically accepting Mr Jones'

index and giving me an extension of time in which

to file the new books.

HIS HONOUR: But he said what he was minded to do was:

make an order directing an amendment of the

settled index in accordance with the

particulars that Mr Short has just given me

and then to require the service of that

amended index upon you and for your compliance

with that index within 30 days, that is, a

filing of the appeal books, preparation and

filing of the application and a supply to each

respondent of three copies of it within 30

days of the receipt of the amended index with

this in mind, that if within 30 days you have

not complied with that requirement of the

rules, your application for special leave will

stand dismissed.

MR BURKE:  Yes, Your Honour.

HIS HONOUR: Well, I take it you have not complied -

MR BURKE: Well, I have not received the index yet.

HIS HONOUR:	Yes, but the conditions. of that order have not been met, and I am not suggesting there is anything
at fault.

MR BURKE: But, you see, I have not had a copy of this

transcript but do you read that as saying that the
special leave application is not on foot and
therefore the dispensation motion is not on foot

again until the books have been filed? That seems

to be the interpretation being placed on it by the

Registry.

HIS HONOUR:  No, no, I do not, but what I am suggesting to

you is that until, as it were, these conditions are

complied with, an application for a dispensation

from counsel is rather premature, putting aside the

Burke(3) 10 7/9/90

difficulties that may arise from the fact that I do

not have any process before me.

MR BURKE: Well, with respect, sir, you see I do not see

that because I am ready to go on the dispensation
thing and, with respect, I do not see that at all.

I do not see how that follows unless

Mr Justice Brennan has specifically spelt that out

which I did not understand him to do. Once the

general thing is back on foot again there seems to

be - there is no reason at all for the dispensation

motion not to proceed.

HIS HONOUR:  The application you are making now is an

application with respect to the special leave
application which was, as it were, reinstated by

Justice Brennan with directions as to what you

should do -

MR BURKE:	Yes, Your Honour.
HIS HONOUR:	And it is in relation to that application - - -
MR BURKE:	But that having been done, it seems to me there

is - well, there is no objection again to

proceeding with a dispensation motion as fast as

possible.

HIS HONOUR:  Except it is a matter of discretion and it is

premature to make an order, assuming that I were in

a position to make an order, before we see whether

you have complied with the conditions that were

laid down by Justice Brennan.

MR BURKE:	There would be no question of my complying. can comply with that in a couple of days.	I
HIS HONOUR:	Very well.	When that is done then it is an

appropriate time to make an application. And I

suggest when you - well, I am not going to suggest

anything to you, Mr Burke, because I cannot advise

you but one could understand, with the document in

motion for dispensation", a motion, presumably, for	it because it couples with the what is termed "a its present form, there might be some objection to	an order granting leave, an appeal from the
decision of Justice Brennan. Now, really, what you
are seeking, as you tell me, is merely a
dispensation for counsel in relation to that
application for special leave?

MR BURKE:  Yes, Your Honour, yes. My argument is because

the consequences of this in terms of delay of time of this dispensation not going forward as it could

have gone forward had this been scheduled

differently back in Adelaide two weeks ago, had

those things been scheduled properly, all this

Burke(3) 11 7/9/90

could be sorted out and the dispensation could have

gone ahead then on - - -

HIS HONOUR:  I do not know. I cannot speak for

Justice Brennan but I very much doubt whether he would have granted a dispensation before it had

been apparent that you had complied with the terms

of his order. You follow what I am saying?

MR BURKE: Well, it seems to me, with respect, I do not

quite see why, once he puts the thing back on
foot - well, I thought the two things might be
separate and we could get ahead, get this one thing

out of the way which, in fact, is going to be quite

a stumbling block in time wise which has become

quite deadly to me but that is, I guess, not

something I can do anything about.

HIS HONOUR: Well, all I can say is that once you have

complied with the terms of the order that

Mr Justice Brennan made, then you can give

consideration to issuing the appropriate process

for obtaining an order for dispensation, if you are

entitled to such an order, and then the Court can

consider it but there is nothing before me at the

moment, and I do not propose to make any order

under Order 58 rule 17 for the reasons which I have

given you. It would be a futile order because

until you have complied with those conditions an

application, and certainly any order on the basis

of that application, would be inappropriate. But

comply with the conditions that were laid down by

Justice Brennan and then you may make your

application.

MR BURKE:	Is the implication of that is had there not been an argument between myself and Mr Jones, that the
motion for dispensation could not have been heard
until the special leave books were filed? That
would be, of course, the normal position. There would be no possibility of the motion for
dispensation going ahead before the special leave
books were filed?
HIS HONOUR:	Yes, unless the conditions laid down by

Justice Brennan are complied with there will be no

special leave application for there to be a

dispensation.

MR BURKE:  Yes, I understands that, Your Honour, but I

thought that Justice Brennan's orders had put the

special leave application back on foot and

therefore the dispensation could go forward.

HIS HONOUR:  Yes, but it is only back on foot in a

conditional form and you have got to comply with

the conditions.

Burke(3) 12 7/9/90

MR BURKE: Well, that is an interpretation which I did not

understand and, as I say, I have not seen that

transcript.

HIS HONOUR:	I am getting perilously close to advising you what to do but there is nothing before me at the
moment and I do not propose to make any order.

MR BURKE: Are you prepared, Your Honour, to rule on the

question of whether these matters were properly

dealt with by the Registry earlier on?

HIS HONOUR:  No, I am not at this stage because any

application in any event would be premature.

MR BURKE:  My final point would then be would Your Honour be

prepared to give any consideration to expediting -

still on the - - -

HIS HONOUR:  Well, that is a matter for you. Once you have

complied with the conditions, then you can take

such steps as you may see fit to proceed with your

application for a dispensation.	I do not think I
can take it any further, Mr Burke.

MR BURKE: All right, Your Honour, okay.

AT 5.48 PM THE MATTER WAS ADJOURNED SINE DIE

Burke(3) 13 7/9/90