Clarke v Coleambally Ski Club

[2005] HCATrans 378

[2005] HCATrans 378

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S447 of 2004

B e t w e e n -

SEAN THOMAS CLARKE

Applicant

and

COLEAMBALLY SKI CLUB

Respondent

Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 27 MAY 2005, AT 11.17 AM

Copyright in the High Court of Australia

MR P.C.B. SEMMLER QC:   May it please the Court, I appear with my learned friend, MR D.E. GRAHAM, for the applicant.  (instructed by McClellands)

MR D.G.T. NOCK SC:   May it please the Court, I appear for the respondent with MR S.G. McCARTHY.  (instructed by Ebsworth & Ebsworth)

McHUGH J:   Mr Semmler, you seek this being stood over until the decision comes down in Vairy and Mulligan?

MR SEMMLER:   We would be happy with ‑ ‑ ‑

McHUGH J:   Yes.  Well, I think that is the most appropriate course, do you not, Mr Nock?

MR NOCK:   Your Honour, that is the first time, I must admit, I have heard of it this morning.  I have certainly not heard from Mr Semmler, so that was going to be ‑ ‑ ‑

MR SEMMLER:   I do not think we have actually said that we seek that, but that would be an appropriate approach if the Court felt it expedient.

McHUGH J:   My memory may be playing tricks on me. 

HEYDON J:   In paragraph 58 it says:

It would be unjust for the applicant in this case to be bound by the Court of Appeal’s decision if the Court, in Vairy and Mulligan, overturns the Court of Appeal’s decisions.

MR SEMMLER:   Yes.  Your Honour, certainly it is our contention that the plaintiff in this case would have a legitimate sense of grievance if the reasoning of the Court of Appeal in Mulligan or Vairy were overturned and that same reasoning were relied upon in this case.

McHUGH J:   Yes.  I think the most appropriate course is to adjourn this special leave application until after the delivery of judgments in Vairy and Mulligan.

MR SEMMLER:   Yes, we would be content with that, your Honour.

McHUGH J:   Yes, Mr Nock, you ‑ ‑ ‑

MR NOCK:   Well, your Honour, certainly the points that will be raised in Vairy will be appropriate here to this case.  It is a question I suppose – your Honour, we are all here and the question of costs I suppose and they should be reserved I suppose.

McHUGH J:   Costs will be reserved, yes.

The application in this matter will be adjourned until the delivery of reasons in cases of Vairy and Mulligan and the costs of today will be reserved.

MR SEMMLER:   May it please the Court.

AT 11.19 AM THE MATTER WAS ADJOURNED