Conomy, In the matter of

[2019] HCATrans 178

[2019] HCATrans 178

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P22 of 2019

In the matter of -

JERROD JAMES CONOMY

KIEFEL CJ
BELL J
GAGELER J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON THURSDAY, 5 SEPTEMBER 2019, AT 10.30 AM

Copyright in the High Court of Australia

MR J.J. CONOMY appeared in person.

MR C.J. HORAN, QC:   May it please the Court, I appear with MS R.J. SHARP for the amicus curiae.  (instructed by Australian Government Solicitor)

KIEFEL CJ:   Thank you.  Mr Conomy, before we get to the more substantive issues of the application, effectively an application for extension of time to file your original notice of appeal, and applications for leave to amend that notice, the last of which was made on 23 August, there are a number of procedural matters that need to be addressed.  They include, but are not limited to, the issue whether certain documents which were posted by you are to be taken as received on the date posted or the date they were received by the Court.  That is not, of course, the only issue but I think that is the one that concerns you the most.  Do you wish to present argument as to that and the other issues raised in the various summonses and communications with the Court?

MR CONOMY:   I do, your Honour, yes.

KIEFEL CJ:   Yes.

MR CONOMY:   The thing that I am very concerned about is that it seems to me that what is happening here is there is an appeal running but it has been run in the original jurisdiction of the High Court.  There is no – there is no facility to hear an appeal in the original jurisdiction.  Now, this – my original appeal notice was lodged on time.  So there are two aspects to my application ‑ ‑ ‑

KIEFEL CJ:   If you are now coming to the point about – I do not think you are coming to the point about the extension.  We are not dealing with that at this point.  I think the first issue procedurally you need to address is the one that you have raised about whether or not you are able to post material and for it to be considered by the Court as filed on the date that you post it rather than the date when it is received.  Do you wish to address that issue?

MR CONOMY:   Yes, I will, your Honour.  So firstly there is an amendment – I have requested an amendment of the summons.  So that is ‑ ‑ ‑

KIEFEL CJ:   Well, more particularly, Mr Conomy, why do you say that you should be able to file by post and for the date to be taken as the date of posting?  What is your argument about that?

MR CONOMY:   Okay, I will cover that now.  So I refer to application 6 as defined in the amended summons filed 26 July 2019 which reads as follows:

Application 6 – pursuant with rule 2.02, for a standing order allowing the applicant to lodge documents in the High Court in any proceeding via express or registered post to the nearest or most direct office of the High Court Registry and for the date of sending by post to be the filing date.

KIEFEL CJ:   By that I take it that you are seeking a standing order.  You are not suggesting that there is at present an order which permits you to file by post.

MR CONOMY:   I will get to that, your Honour.  I now wish to reinforce the relevant part of my affidavit, sworn 12 April 2019, in support of that application I have just canvassed.  At paragraph 4 it relevantly states:

A notice of appeal was lodged on 3 April 2019 in the same way I have lodged documents for –

Sorry, your Honour, there is a lot of noise coming through.  Perhaps that is just the paper.  Anyway, I will keep going.

KIEFEL CJ:   Yes.

MR CONOMY:   So at paragraph 4 of the affidavit it says:

A notice of appeal was lodged on 3 April 2019 in the same way I have lodged documents for approximately 3 years and approximately 50 different lodgments –

That is actually closer to 100 than 50 but I will keep going:

and this included all lodgments in P3 and P11 of 2019 which the notice of appeal seeks relief from . . . This summons is in response to that notice of appeal being refused to be filed by the Registrar and other related things and hence the notice of appeal is not again attached to this summons because the Deputy Registrar obviously already has it.

At paragraph 19 of the affidavit it is relevantly stated:

As a result of orders made by Justice Gordon in 2016 in determination of a summons of mine, my documents have, until 3/4/2019, always been accepted for filing by post and the filing date has always been the date of sending by post for obvious reasons.  This included all lodgements in P3 and P11 of 2019.  The circumstances which gave rise to Justice Gordon’s said orders are unchanged in that my place of residence remains the same and I am still on –

the exact same Healthcare concession, which is an extra low income, which is:

proven by the fees exemption form lodged with the notice of appeal 3/4/2019.  I also argue that if not for these orders made by Justice Gordon, it would have consumed 2.5 hours (at best) of my time just to lodge one –

document in the High Court, instead of 15 minutes to do it by post.  Alternatively, if I chose to use a courier:

if express courier had to be employed it would have cost, for say a 20 page lodgement, approximately $30 . . . for each lodgement compared with approximately $9 for australia post –

anywhere in Australia.  Now, there were comparisons and each scenario applied to three years and 50 separate submissions and that 50, your Honour, that is very conservative, but I am going to go with that for now.  Three years and 50 separate submissions, which is approximately how many times I have been allowed to file documents by post.

For example, one, I would have spent at best two and a half hours times 50, which equals 125 hours just to lodge documents – just the lodgement process - whereas compared to one quarter of an hour times 50 equals 12 and a half hours.  That is like a 1000 per cent difference.  Now, it is not – I will get back to what I was about to say, so I will keep reading from the affidavit:

For example 2, it would have cost $30 x 50 = $1500 compared to $9 x 50 = $450. 

So there is a 300 per cent difference there.  No matter which way I choose, I would have been out of pocket and for someone who is earning $250 a week - that is my income - so that is - what is that  – $30 a day, these things add up.  That is the difference between buying a full suite of food for two weeks – that is the difference that this makes.

The numbers do not lie.  Fair access to law includes a practical and reasonable method of lodging documents, not just once, but for the duration of however long and however many lodgements may be required, and this should not be affected merely because of where a person lives and their financial circumstances.  For these reasons, it is in the best interests of the proper administration of justice that the orders requested as defined in the summons be granted and made to apply for as long as my residential circumstances remains the same. 

I have also made additional contentions on this topic via my amended written submissions and I request that content to be applied and considered - which is at paragraphs 34 and 42 of my amended submissions - and I again stress that is in addition. 

In addition again I also add the following argument.  For all intents and purposes, the essence of this application for file by post privileges is the exact same as the application granted by Gordon J on 29 April 2016 which resulted in me filing documents by post in High Court proceedings for the best part of three years. 

The application on that occasion was dated 29 April 2016 and raised the impracticalities with filing in person due to where I lived and my dire financial circumstances, and sought that the document that I had lodged by post on that occasion be accepted – by post or fax, excuse me – be accepted as filed on time.  Gordon J – I apologise if it is – I am saying “Gordon J” because that is how I have written it.

KIEFEL CJ:   Do not be concerned about that.

MR CONOMY:   I would not say that in – Gordon J granted the application and deemed the document to have been filed on time.  Included in the orders was that the date of sending by post was the filing date, and that is obviously to allow for the amount of time that it takes to get from your home into the Court, and that was the reason Gordon J made that order.  It seems quite obvious.  A precedent was set by Gordon J on that occasion.

I now request your Honours to consider and apply affidavit Y on 21 August 2019, which is relevant to the application for file by post privileges.  So I will just go through that.  I will just get to the nitty‑gritty part and leave it up to your Honours to consider the other parts.  So, at paragraph 5 of affidavit Y, sworn 21st of the 8th 2019, at paragraph 5:

Since the letter of the Principal Registrar suggesting my file‑by‑post arrangement had been ‘exhausted’ in March/April 2019, I have encountered many filing related difficulties which is exacerbating an already highly distressing period of my life.  In addition to those issues identified in paragraph 11, 12 and 19 of my summons dated 12 April 2019 –

I think that is referring to the supporting affidavit, but yes, I will come back to that:

and in my amended submissions, some other examples follow.

On 12 April 2019 I requested a courier to lodge documents for me and specified that it needed to be before 4pm, which the courier confirmed he would do but failed to actually do it before 4 pm which is all evident in the associated email trail between myself and the courier between 12‑18 April 2019 –

That is evident at FMB, further materials book 315, or exhibit Y1, which is an exhibit to this affidavit that I am reading from:

The documents were completely dejected by Ms Musolino and I had to rearrange for a courier to redeliver the items at a later date.  This would not have happened if I had the option of filing documents by post.

On 10 June 2019 I knew that I had a huge lodgement to make which was due the following day so I contacted the courier in advance to ensure he would be available.  On the morning of 11 July 2019 I contacted the courier again and explained the 4pm cut‑off, which he confirmed would not be a problem, but then later he contacted me explaining he would not be able to do it.  This is evident in the text message trail between us on 11 June 2019 –

and that is evident at exhibit Y2 to this affidavit that I am reading from:

The stress this put me under was immense especially when I had spent weeks preparing the large amount of documents required.  This would not have happened if I had the option of filing documents by post. 

On the morning of 10 July 2019 I was putting the finishing touches to my documents which were due that same day –

and that is evident at exhibit – sorry, that is at exhibit Y4 to this affidavit:

This time I decided to try and different courier and eventually found one who could confirm that delivery would be done by 4pm that day.  I started to get worried at about 2.30pm when they had not showed to pick up the documents so I decided to do it myself.  On the drive to Perth, I encountered an abnormally large traffic related delay and again I was immensely stressed out.  I eventually got to the Perth Office of the Registry at 4pm with not one minute to spare which I only managed due to not paying for a parking ticket and sprinting to the office.  This extremely stressful situation would not have happened if I had the option of filing documents by post. 

Given the large amount of [documents] I have had to make since the loss of filed‑by‑post privileges and given the problems I have encountered above in [trying to effect] in‑person lodgment and given my dire financial circumstances, I have recently been forced to lodge documents by post and explain the pending application for file‑by‑post reinstatement each and every time.  Ms Musolino will easily be able to confirm this which has been the case for my last 5 or so lodgments as an estimate and that number will only rise further as time passes.  Potentially, I am at risk of those documents being rejected by a Justice when the application finally comes through for determination which I feel is a ridiculous state of affairs.  In total, I estimate that since losing file‑by‑post privileges in April 2019, I have already been required to file documents on approximately 10 different occasions as at the date of this affidavit and that number will continue to rise –

I have also contacted the highest courts in New Zealand and the United Kingdom.  Every single one of them allows file by post. 

KIEFEL CJ:   Have you finished with that procedural issue, Mr Conomy, because you have others I think to address if you wish to.

MR CONOMY:   I am almost there, your Honour.  I have only been required to appear for a hearing on three occasions, which is something I have to do and it is very rare and in fact a family member has helped me out on this particular occasion by paying for a hotel room so that I could drive to Perth yesterday and avoid a very stressful peak hour trip to Perth this morning.  They only agreed to do this because it was a once in a blue moon thing and financial assistance is not available to me every time I need to file documents, which covers the past three and a half years I have needed to do on more than 50 occasions in the High Court.

The final thing I will say on that is the precedent was set by Gordon J and that was to accept the – deem the filing date to be the date of sending by post.  That is how it was.  I cannot see any reason why that would not again apply now.  If your Honours were to now say, well, no, it is not going to be until it gets into the Court, then that is not right because I would have needed to know that and there is no way that I could have known that.  I could only have known that – there is one more thing.

How is it, your Honour, that in the Court that this proceeding is brought from, this High Court proceeding, how is it that in that proceeding I was able to file documents by post and the documents were accepted as filed on the date of posting?  Now I am still in the High Court.  It is still related to that same proceeding and it has all of a sudden changed.  Give me a break; it is ridiculous.  You should be ashamed to have ‑ everyone involved in this should be ashamed.

KIEFEL CJ:   Mr Conomy, calm yourself, collect yourself and then proceed and keep talking civilly and politely and we will continue to hear you.  Do you wish to move to any of the other matters that are raised in your summonses, the other orders that you seek - for instance, your application for sealed orders be corrected to align with what is pronounced in Court and application for suppression orders or do you wish to rely upon your written argument about these matters?

MR CONOMY:   No, I will definitely be getting to those things; absolutely, your Honour.  At this point I would ask for a verbal decision approving my application for filing - those privileges and for the date of filing to be ‑ ‑ ‑

KIEFEL CJ:   No, the procedure that we will undertake this morning, Mr Conomy, is that we will hear argument on all of the procedural issues that you have raised in your summonses, except for the larger question of the extension of time to file a notice of appeal and the leave to amend the notice of appeal.  At the conclusion of your argument about all of your procedural issues decisions will be given on those matters.

MR CONOMY:   So your Honour is saying that I cannot amend my amendments to the original summons – cannot be verbally applied before we go ‑ ‑ ‑

KIEFEL CJ:   No, I am saying that the Court wishes to hear all of your argument about all of the procedural issues you have raised in your various summonses and then we will consider the matters that you have raised and give a decision then.  We are not going to do them one by one.

MR CONOMY:   Okay.

KIEFEL CJ:   It is just not efficient.

MR CONOMY:   The problem I have is that every time you have referred to my application as to the timeliness of the appeal you have called it an extension of time.

KIEFEL CJ:   Well, that is the effect ‑ ‑ ‑

MR CONOMY:   It is not just a request for an extension of time, it is a request for your Honours to deem that it was filed on time, by post, and that is acceptable and that this proceeding should be coming into the appellate jurisdiction.  That is what the application is.  So that is the reason why I am asking for this verbal decision in relation to the filing by post, because I am not going to sit here and – stand here and argue things that should be in an appellate jurisdiction when – so again I ask your Honours for a verbal decision as to the filing by post request.

KIEFEL CJ:   Mr Conomy, you have heard me say that the Court will hear you in relation to all of the procedural issues you have raised and then decisions will be given at the conclusion of that.  We are not going to deal with these piecemeal, one by one.  Do you wish to make further submissions about the numerous matters that you have raised?

MR CONOMY:   Yes, your Honour.  Your Honours, anything that relates to the appeal which is all the – including all the procedural things, I do not feel that that is right to be dealing with that as an application for a summons.  There is no jurisdiction for the High Court to determine appeals, procedural matters in appeals, in the determination of a summons, when the appeal notice was lodged on time.  That is the – that is the question here, that is the first thing.

That needs to get resolved, because that affects which documents I am going to be referring to, it affects whether I am protected by the International Covenant on Civil and Political Rights and the legislation which gives effect to those protections.  Why should I – why am I not allowed to have my appeal determined procedurally in the appellate jurisdiction?

KIEFEL CJ:   Mr Conomy, you do not dictate how the matters are determined by this Court.  I have said to you that the Court will hear your arguments on all of the various summonses with respect to the various issues that you have raised procedurally and they will be dealt with before we come to the question of whether your notice of appeal was lodged in time – well, you have made argument about that - and whether or not we proceed to the question of whether there is an extension of time necessary and hear argument on that.  So you have dealt with - you have argued about the notice of appeal you say was lodged in time.

MR CONOMY:   I have not argued that yet, your Honour.

KIEFEL CJ:   Well, I think you said it was lodged on the 3rd, whereas the Registry have stamped it “Received on the 4th”.

MR CONOMY:   I have not argued that yet.  I am going to get to that, your Honour.

KIEFEL CJ:   Well, perhaps you should deal with that now.

MR CONOMY:   Well, I am going to but as I have requested in my amended summons I requested that this ‑ ‑ ‑

KIEFEL CJ:   You have dealt with the filing ‑ ‑ ‑

MR CONOMY:   ‑ ‑ ‑ the request for file by ‑ ‑ ‑

KIEFEL CJ:   You have dealt with the filing by post issue.  We have heard your argument in relation to that.  Which topic do you wish to proceed with now?  Do you wish to argue about whether or not an extension of time is necessary, or one of the other issues that you have raised?

MR CONOMY:   Just a moment, your Honour.  I will just tackle the application for the correction of the signed and sealed orders in P3 and P11 of 2019.

KIEFEL CJ:   Yes.

MR CONOMY:   Again, I have made applications for amendments.  This relates to application 4 of the amended summons, filed 26 July 2019 which reads as follows:

Application 4 – pursuant with rule 3.01.2 or the principle that a Justice can make any orders if it is in the best interests of justice to do so (or both), for the signed and sealed orders in P3 and P11 of 2019 to be amended so as to align exactly with the orders published by the Justices in the said proceeding on 20 March 2019 and to cause the applicant to be issued with the amended signed and sealed orders and that, if required, the application the subject of this paragraph be treated as if it were also applied for in P3 and P11 of 2019.

I would do that just in case the problems with getting the order made was because I raised it in this proceeding, so technically it should be applied for in that proceeding.  But we are here now.  We are dealing with a matter which has been brought from that matter so I am saying that that order can be made in this proceeding.

The relevant parts of the affidavit sworn 12 April 2019 in support of the application are paragraphs 6 and 17 which I will now reinforce again in the interests of accountability of the judiciary and the right of the public to know the details.  Paragraph 6 reads as follows:

The reasons for Judgement in P3 and P11 of 2019 clearly indicate that the main applications were dismissed for being vexatious which is an exercise of the original jurisdiction.  Further, the orders published by Justices Keane and Edelman show the applications for special leave were dismissed, not refused leave.  Despite this, the signed and sealed orders issued by the Deputy Registrar incorrectly purport that the application was refused leave (as opposed to dismissed) which incorrectly purports that a normal determination of special leave was exercised.  This minor but significant contradiction was communicated to the Deputy Registrar on 27 March 2019 via email in which the applicant sought corrected orders to be issued.  To this date there has been no response from the Deputy Registrar and in the meantime, the applicant makes the reasonable and necessary assumption that there was a minor glitch when the Deputy Registrar prepared the orders and that all orders made in determining P3 and P11 of 2019 were exercising the original jurisdiction of the High Court as per the reasons for Judgment and published orders.

At paragraph 17 of the affidavit:

As already covered above and in correspondence with the Deputy Registrar, the signed and sealed orders prepared by the Deputy Registrar significantly differ from the orders actually published by the Judges. See decision transcript [2019] HCATrans 049, 20 March 2019, lines 359 to 362 and 387 to 391. Further, see the orders published by Justice’s Keane and Edelman which show the applications for special leave were dismissed, not refused leave. The effect is that the signed and sealed orders incorrectly imply that some of the orders were not exercising original jurisdiction which obviously creates a dangerous situation in which it could erroneously be seen that I am attempting to appeal from orders refusing special leave to appeal. For these reasons it would be practical and in the best interests of avoiding a miscarriage of justice that the application defined in the summons be granted.

So that is reading from that affidavit.  I have also included additional contentions on this topic in paragraph 32 of my amended submissions filed 10 July 2019, which I wish to also be considered by the judiciary on this topic.  I have just a couple of additional points to make on this subject, which I will address now, and these are in addition, your Honours, not replacing anything.  Rule 3.01.2 provides, and I quote:

The Court or a Justice may, at any time, correct a clerical mistake in a judgment or order, or an error arising in a judgment or order from any accidental slip or omission.

The signed and sealed orders are authenticated only by a Registrar.  In any battle between a document authenticated by a Registrar versus the published and certified orders and reasons of the Justices, the latter must always prevail.  It is high school stuff.  It is true that in the normal disposition of special leave applications some Justices use the words “dismissed” and “refused” interchangeably.  This was not by any means a typical scenario in which the Justices had before them a situation in which they could dismiss the applications for special leave either in exercise of section 77RN of the Judiciary Act or in the more normal way. 

The wording used by the Justices in this particular scenario was important.  I have read many special leave dispositions and many Justices state that special leave is refused when they have performed a test which gauges how the grounds would potentially fare in appeal circumstances or if they perform a test as to whether the special leave grounds raise issues of a nature warranting consideration.

In general English when you dismiss an issue, you are effectively saying it does not even warrant any serious consideration because of some major flaw.  To me, when a justice states that special leave is refused, it suggests that the request for special leave has been seriously considered in the normal way.

In this case, the Justices did not state anywhere that special leave was refused and the only legislation canvassed was section 77RN, which uses the word “dismissed,” and they used the word “dismissed” in rejecting the special leave applications, which should be reflected in the signed and sealed orders.

I am certainly not the first person to raise this type of miniscule but important issue and even in the event that it ends up being insignificant on one occasion it would be in the best interests to correct the differences in any case promptly when it is applied – even if it is just for the ease of the mind of the party and the potential – and to potentially prevent another proceedings being initiated as a result of the doubt in that party’s mind.

There have been a lot of cases which deal with this particular thing, and it is something that unless every judge in Australia is on board with the principle that it does not matter, unless that can be proven, then you cannot – you cannot say that it - no, no, it means this in one scenario or it means that in one scenario.  It is dangerous, it is legally dangerous.  So that is that topic.

Now, I will deal with the – actually, I will have a quick drink of water.  So I will switch to the topic of the lodgement of the notice of appeal on the due date by post, which is separate from my previous argument, which was generally for file by post privileges.  So this is addressed in the first part of application 3(a) in the amended summons filed 26 July 2019, which relevantly reads as follows, and I quote:

Application 3:  (a) for the applicant’s notice of appeal dated and lodged by post 3 April 2019 to be accepted for filing and deemed filed on time –

I will now refer to the relevant parts of the affidavit sworn 12 April 2019 in support of the summons.  At paragraph 4 it is stated:

A notice of appeal was lodged on 3 April 2019 –

There is some overlap, your Honour, but it is miniscule.  So quote:

A notice of appeal was lodged on 3 April 2019 in the same way I have lodged documents for approximately 3 years and approximately 50 different lodgements and this included all lodgments in P3 and P11 of 2019 which the notice of appeal seeks relief from.

At paragraph 4 it goes on to state:

This summons is in response to that notice of appeal being refused to be filed by the Registrar and other related things and hence the notice of appeal is not again attached to this summons because the Deputy Registrar obviously already has it.

At paragraph 11:

I noticed that the due date was 14 days which to my dismay meant the due date was 3 April 2019 (that same day I made this discovery) –

That discovery is talking about the fact that I had realised that I needed to file a notice of appeal as opposed to an application for leave to appeal.  Getting back to the affidavit:

I very quickly rushed to prepare a notice of appeal and cover letter and lodged the documents that same day (3 April 2019).  On my way back from the post office –

That part of the affidavit is very clear about having lodged the notice of appeal with the post office on 3 April 2019 and which remains undisputed by anyone.  It has never been disputed, not by any registrar, not by any judge, not by anyone.  At paragraph 12 it is then stated – of the affidavit I am talking about:

I feel it is important to note that, prior to 3/4/2019, for approximately three years and a guessed 50-70 different lodgements including all lodgements n P3 and P11 of 2019, Ms Musolino had always accepted my documents by post and the lodgement date had always been the date of sending by post which were the terms of the orders made by Gordon J in 2016 in determination of a summons of mine.

KIEFEL CJ:   Just to be clear, Mr Conomy, are you saying that the notice of appeal was sent by post or that it was placed under the door of the Registry?  Was it couriered?  Is that what you are saying?

MR CONOMY:   I did both.  That is what I am saying, and that is what I have said in the affidavit.  That was in my original summons and the amended summons.  The affidavit is the same.  I did it in both methods.  I filed it in two different ways, to cover all bases.  So it was lodged in the post office on the due date.

I again seek a verbal decision with regard to this application – you are not going to do that, so I will get to the next part.  I will just keep reading it.  It is not long to go.  I again seek a verbal decision with regards to this application before going any further.  I am sure your Honours could appreciate my interest in the appeal being determined in a proper jurisdiction, as is prescribed by law, especially when considering the benefits that come to me such as the accountability of the judiciary, the finality of the decision and the engagement of the protections afforded by the Australian legislation giving effect to the ICCPR protections.  So that is that topic.

So you will know that I have reworded the amended summonses so that it gives effect – it has the effect that the file by post on time issue ‑ with respect, your Honours, that needs to be determined first.  That is the first question.  The second part of that same application I will deal with now, and that was my subsequent lodgement of the appeal notice in person.

In addition to what I have already said on this topic via my second further amended summons and amended submissions, I draw your Honours’ attention to the decision in the interlocutory hearing of Republic of Nauru v WET040 which starts on page 1323 of the JBA, the joint book of authorities.  Paragraph [14] is the relevant part.  In short, Justices Gageler, Nettle and Edelman made orders granting an extension of time in exercise of rule 4.02, the reasons given being that the delay was small and it was adequately explained. 

There were no considerations on that occasion as to the potential prospects of the appeal, as there should not be when the delay is so minor and adequately explained and yet here I am three months after making the exact same application and I am still not in the appellate jurisdiction.  In the interests of equality before the law that same approach should be taken in this proceeding and I seek verbal orders from your Honours bringing the appeal into the appellate jurisdiction where it should be.

So that is the second part of my timeliness thing.  The first part is that it was filed on time by post.  This is the second part.  There are two different lodgement methods talked about here.  The contradictor, he has just evaded the first part of it.  He is just saying, no, it is an extension of time, which is just one of many unethical things that he has done, which I will get to.  The next topic I have got here to address is ‑ ‑ ‑

KIEFEL CJ:   Does that complete the matters raised in your summons of 23 April?  I think you have ‑ ‑ ‑

MR CONOMY:   That concludes ‑ ‑ ‑

KIEFEL CJ:   The 23 April summons?

MR CONOMY:   ‑ ‑ ‑ what I wanted to – that concludes what I wanted to say to your Honours today in relation to the amended version of that summons.

KIEFEL CJ:   Yes.

MR CONOMY:   The proposed amended version.  I am not saying that what I have addressed today covers everything in that summons.  Those things otherwise need to just be addressed, as per the – on the papers, as in ‑ ‑ ‑

KIEFEL CJ:   Is there anything further you wish to say with respect to the matters raised in the summons of 26 July or is that really just – that is an expansion of the matters that you have otherwise raised?

MR CONOMY:   Yes.  Whether I have something more to say depends on how your Honours are going to determine this summons.  Are you going to determine this summons by gauging the prospects of success of the appeal because if that is the case then I have got a heck of a lot more to say.

KIEFEL CJ:   In your summons of 7 August, are you pursuing that?  You seek a stay of proceedings, but I think that has been overtaken by – that was the stay of proceedings pending an appeal from the orders made by Justice Gordon.

MR CONOMY:   No.

KIEFEL CJ:   But that has been overtaken by the appeal which has been determined by Justices Bell and Nettle.

MR CONOMY:   No, your Honour, that is not the case.  I will address that now?

KIEFEL CJ:   Yes.

MR CONOMY:   Okay.  So the next topic is my further summons in this proceeding lodged 7 August 2019, as you just spoke of.  The summons was filed by post and served on the contradictor on 7 August 2019.  I note that Ms Musolino has only recently sent me an email on 29 August 2019 advising me that the Court had directed that my summons filed 7 August 2019 would be heard today, along with the other summonses.  I reaffirm my request for the stay of this proceeding as set out in that summons and supporting affidavit and I will now reinforce aspects of that summons. 

So just quickly looking at the summons itself, the interesting bit is application 5, so I will leave your Honours to look at the rest in your own time. So paragraph 5 of the summons filed 7 August 2019:

Application 5 – pursuant with the principal that a Justice can make any order if it is in the best interests of justice to do so or rule 2.02 (or both), for an immediate stay of this proceeding (with the exception of steps required to satisfy the following conditions) . . . (a) the complete and final determination of my application for leave to appeal.

That has happened, so the (a) part of that can be scrubbed, as you mentioned, your Honour.  That does not render the application for stay void, not in any stretch.  The second condition is the (b) condition and that is:

in the event that a contradictor is still applied to this proceeding after the completion of condition ‘a’ –

which is still the case:

the contradictor file replacement submissions within two weeks of the determination of this application which properly address my argument for each and every ground (as particularised and argued via my further amended notice of appeal and amended submissions both filed 10 July 2019) -

and that would now become the second further amended notice of appeal:

and amended submissions, both filed 10 July 2019) and all preliminary matters argued within said documents, and otherwise addresses the fundamental shortcomings with the contradictors current submissions . . . (not all shortcomings) are addressed in the supporting affidavit.

I will just quickly go through that.  I will skip those boring bits at the start and get to the nitty‑gritty.  On page 3 of the supporting affidavit it reads from the top:

Regarding the ‘(b)’ condition

On 3 July 2019, Gordon J made directions in P22 of 2019.  The relevant parts are:

“It is appropriate that a contradictor be appointed to appropriately put forward any opposing view to those set out in Mr Conomy’s submissions consistent with the principles identified by Brennan CJ in Levy v Victoria (1997) 189 CLR 579 at 604‑605. …

… In P22 of 2019, the orders of the Court are:

1.That counsel, to be identified by the Australian Government Solicitor by 19 July 2019, be appointed ‑ ‑ ‑

KIEFEL CJ:   Mr Conomy, is this the removal of the contradictor or the amicus that you are seeking by the email dated 28 August 2019?  I do not think you have filed a summons in this respect, have you?  That is what I am really asking you.  This issue ‑ ‑ ‑

MR CONOMY:   I absolutely have, your Honour.

KIEFEL CJ:   Well, which summons do you say it was raised in?

MR CONOMY:   Filed 7 August 2019, and you have actually referred to it.

KIEFEL CJ:   I am sorry, my apologies, I overlooked that part of it.

MR CONOMY:   No problem.  I do not know how you guys do not make more mistakes, honestly.  So I will just get back to that paragraph that I was quoting from:

“It is appropriate that a contradictor be appointed to appropriately put forward any opposing –

So I am reading from the affidavit in support of that summons, so “On 3 July”, and that is page 3 of the affidavit:

On 3 July 2019, Gordon J made directions in P22 of 2019.  The relevant parts are:

“It is appropriate that a contradictor be appointed to appropriately put forward any opposing view to those set out in Mr Conomy’s submissions consistent with the principles identified by Brennan CJ in Levy v Victoria (1997) 189 CLR 579 at 604‑605. …

… In P22 of 2019, the orders of the Court are:

1.      That counsel, to be identified by the Australian Government Solicitor by 19 July 2019, be appointed amicus curiae in relation to the applicant’s summons dated 23 April 2019 and any appeal.

2. For the purpose of Part 44 of the High Court Rules 2004 (Cth), the amicus curiae is to be treated “as the respondent.”

Rule 44.03.2 demands that the respondent’s submissions must address all submissions made by the appellant.  In the interest of equality before the law, this rule cannot be overlooked.

That is the – it is the sole purpose of a contradictor.  It is in the name, for goodness sake.

The submissions of the contradictor . . . were filed on 2 August 2019.

Following is a brief (and certainly not exhaustive) list of the fundamental failures of the Contradictor to put forward an opposing view.

a.        Substantially fails to correctly identify the issues obviated via the grounds and argument (as particularised and argued via my further amended notice of appeal and amended submissions) in a way which cannot be explained by human error and, rather, indicates deliberate misconduct.

b.        In relation to my ground 3 –

as opposed to the contradictor’s ground and associated - so:

In relation to my ground 3 and associated argument (as presented in my further amended notice of appeal and amended submissions, both filed 10 July 2019), failing to present any argument whatsoever addressing particulars –

Addressing the first, second and fourth particular of my ground 3:

and in addition, failing to adequately enter my argument for the other particulars under said ground 3–see paras 46 (iii) through 51 of the contradictors submissions –

So that was 46(iii) through to 51.

In relation to my ground 3 and associated argument . . . the contradictor has substantially, if not completely failed to address the facts I had contended via paras 88‑99 of the amended submissions‑see paragraphs 46 (iii) through to 51 of the contradictors submissions.

d.        In relation to my ground 2 and associated argument (as presented in my further amended notice of appeal and amended submissions both filed 10 July 2019), failing to acknowledge that the ground also focussed on a summons being deemed vexatious, not just the special leave applications‑see para 53 of the contradictors submissions –

e.        In relation to my ground 2 and associated argument . . . completely failing to address particulars (i‑viii) –

of ground 2.  There is just nothing, nothing in relation to it at all:

see paras 52 (c) through to 60 of the contradictors submissions -

Where I am directing the Court to the contradictor’s submissions I am saying this is where you will see that there is nothing to do with what my grounds raise:

f.         In relation to my ground 2 and associated argument . . . the contradictor has substantially, if not completely failed to address the facts I had contended via paras 60‑73 of the amended submissions‑see paragraph 52 (c) through to 60 of the contradictors submissions;

g.        In relation to my ground 1 and associated argument . . . completely and epically failing to put forward any relevant argument in that not one paragraph is presented in the context of the scenario which I had painstakingly defined into the ground ‑ ‑ ‑

KIEFEL CJ:   Mr Conomy, you are not entitled to use the word or suggest unethical behaviour on the part of the amicus.  Confine yourself to speaking in language more moderate.  It is a very serious allegation to make.  You might not appreciate that ‑ ‑ ‑

MR CONOMY:   It is.

KIEFEL CJ:   It is a very serious allegation to make.

MR CONOMY:   I am going to keep saying it – absolutely going to keep saying it.  It is not a personal attack; it is unethical.  It is a fact.

KIEFEL CJ:   What do you mean by “unethical”?  The fact that something just was not done - is that what you mean?

MR CONOMY:   Not just something, not just something.  That something was the something that he was – that was his one job to do, to reply to my submissions, as I have put them forward, and instead he has tried to use it as a passage of trying to turn ‑ ‑ ‑

KIEFEL CJ:   Well, that is not the proper meaning of “unethical”.

MR CONOMY:   Well, he is trying to use it as a way of ‑ ‑ ‑

KIEFEL CJ:   You do not attack ‑ ‑ ‑

MR CONOMY:   ‑ ‑ ‑take – direct ‑ ‑ ‑

KIEFEL CJ:   Mr Conomy ‑ ‑ ‑

MR CONOMY:   Well, you wanted me to explain “unethical”, your Honour.  You asked me to do this.

KIEFEL CJ:   Mr Conomy, compose yourself.

MR CONOMY:   All right, can I keep going?

KIEFEL CJ:   You can, but you are not to use the word “unethical” or suggest unethical behaviour against the ‑ ‑ ‑

MR CONOMY:   All right.

KIEFEL CJ:   You are not to attack the amicus in this way.  Just make your submissions objectively about objective facts.

MR CONOMY:   I have already prepared this, so I will try.  When I see that word I will try and stop myself.

KIEFEL CJ:   Just delete the word as – just delete it as you go through.

MR CONOMY:   Well, I cannot do that.

KIEFEL CJ:   Do your best.

MR CONOMY:   All right, do you want me to sit here and – okay, I will go through it and I will ‑ ‑ ‑

KIEFEL CJ:   Do your best, Mr Conomy.

MR CONOMY:   All right, I will go through and I will delete all that stuff.  Just give me a half an hour.

KIEFEL CJ:   No, do the best you can orally now.

MR CONOMY:   Yes, that is what I thought.  I am talking about “g” now.

In relation to my ground 1 and associated argument . . . completely and epically failing to put forward any relevant argument in that not one paragraph is presented in the context of the scenario which I had painstakingly defined into the ground –

So I will just finish that sentence:

which I had painstakingly defined into the ground and the opening paragraph of the associated submissions. –see paras 61-70 of the contradictors submissions;

h.        In relation to my ground 1 and associated argument . . . the contradictor has substantially, if not completely failed to address the facts I had contended via paragraphs 47-56 of the amended submissions;

i.         Fails to address my argument contending that the only legislation identified in the decision of Keane and Edelman JJ regarding the dismissal of applications was section 77RN(2) of the Judiciary Act which was argued in the last sentence of para 32 of my amended submissions;

j.         Fails to address my contentions regarding the postal lodgement of the notice of appeal on the due date and the part of the application for it to be deemed filed on time and for file‑by‑post privileges generally as presented in my prior summons and amended submissions;

k.        At para 4 it is stated that the ‘Attorney‑General makes no submission as to whether or not’ the court should grant the part of my application requesting that the notice of appeal dated 3/4/2019 be treated as filed on time –

That is unacceptable.  That is just unacceptable:

l.         Fails to address my argument that only a Registrar is involved in the preparation and authentication of the signed and sealed orders which must take a ‑ ‑ ‑

KIEFEL CJ:   Mr Conomy, I think you can take it that we have read the rest of this paragraph for the point you make there.

MR CONOMY:   I am just reinforcing these things, your Honour.  It will not be much longer.

KIEFEL CJ:   All right.

MR CONOMY:  

l.         Fails to address my argument that only a Registrar is involved in the preparation and authentication of the signed and sealed orders which must take a back seat if they differ from the orders certified in writing by the Justices as presented in para 32 of my amended submissions‑the contradictor merely suggests that the signed and sealed orders are the authenticated which does not properly enter into the argument –

Someone who is actually interested in entering the argument would have mentioned something about the authentication only by a Registrar.  Someone who does not mention that is evading that.

m.       Fails to address my argument that the signed and sealed orders must use the wording used by the Justices in their published and certified orders;

n.        Failed to either consent or object to my proposed amendment at para 31 of my amended submissions;

o.        Failed to either consent or object to my further amendments of the notice of appeal and amendments to the written submissions;

p.        Failed to address my contentions regarding amendment legislation and principles at para 39 of my amended submissions;

q.        Fails to present argument allowing for the scenario in which the High Court finds that section 77RN was exercised in dismissing the applications for special leave to appeal and summonses in P3 and P11 of 2019 as was the basis I had argued throughout the appeal (Only the Justices can make the final call as to which legislation was exercised) –

and the contradictor has to reply to my submissions, as I have presented them.

r.         Failing to properly apply all of the ‘Terms, definitions, abbreviations and legal statements’ as defined in paras 13‑16 and 19 of my amended submissions.

Basically, the contradictor has just picked which bits he wants to make replies to and then just ignored the rest.  That is not possible.  You cannot do that because my legal statement says that these must be considered.  That is how I have prosecuted those grounds. 

The contradictor’s submissions are objected to –

and I submit they:

must be dismissed in that they are substantially contrary to the basis on which the contradictor was appointed.

The application for a stay as defined in the summons should be granted.

The fact that my appeal from Gordon J’s orders does not have any effect on the resilience of my request for this stay.  Support for the application - and I seek expenses, as opposed to legal costs.  I seek the expenses I have incurred as a result of this.  So that is the 7 August summons, your Honour.

KIEFEL CJ:   They are the main procedural issues that need to be resolved before the matter proceeds further, I take it, Mr Conomy.

MR CONOMY:   That is not all of them, your Honour, no, I am sorry.

KIEFEL CJ:   Which other summonses are you referring to now?

MR CONOMY:   I just want to make sure that there are not any other procedural things that I have left out ‑ procedural matters, amendments.

KIEFEL CJ:   I think any amendment to the original notice of appeal is something to be considered ‑ ‑ ‑

MR CONOMY:   Are procedural matters, so I will tackle the amendments.

KIEFEL CJ:   Amendments to what?  Amendments to the notice of appeal?

MR CONOMY:   I will get to that, your Honour.

KIEFEL CJ:   No, no, what amendments are you talking about?

MR CONOMY:   I am just about to talk about them.

KIEFEL CJ:   Are you talking about amendments to the notice of appeal?

MR CONOMY:   There are various things.  I have submissions to make in relation to my various requests for amendments.

KIEFEL CJ:   Are they the amendments to the notices of appeal, though?  Are they amongst the - because that would be ‑ ‑ ‑

MR CONOMY:  There will be some.

KIEFEL CJ:   That would be premature because we would need to have determined whether or not you need an extension of time to file a notice of appeal before we hear any argument about amending the notice of appeal.  You would understand that logically follows.

MR CONOMY:  I think you meant that we are going to consider whether the appeal was filed on time first and then ‑ ‑ ‑

KIEFEL CJ:   I think the principal procedural issues are contained in the two summonses that you have just dealt with.

MR CONOMY:   So, if I can go through these amendments?  So, I am making argument in support of various amendments which includes those summonses.

KIEFEL CJ:   Well, no ‑ ‑ ‑

MR CONOMY:   I approach the various questions on amendment in the context of amendment in one bulk submission instead of in piecemeal format throughout the day as I will otherwise fail to address something.  The High Court has previously adopted principles relating to amendment from the well‑know case of Cropper v Smith. One example is Queensland v J L Holdings.

KIEFEL CJ:   Mr Conomy, the principal procedural issues are contained in the two summonses of 23 April and 7 August.  The Court can now consider those matters and shortly give you a decision.  Of course, the amicus is not involved at this point because the amicus is only dealing with any subsequent issues that might arise depending upon how we rule.  But, I think at this point, the Court can adjourn for a short period to determine what course it will take with respect to those summonses and then we can consider any other procedural issues you raise in light of the course that the Court takes.

MR CONOMY:   Your Honour, no, I have got arguments to make ‑ ‑ ‑

KIEFEL CJ:   No.

MR CONOMY:   ‑ ‑ ‑ in relation to the amendments to those summonses which I have not made yet.  It is not going to take long.

KIEFEL CJ:   All right.  They are amendments to the summonses.  So can you identify the summons and what the amendments are?

MR CONOMY:   I am going to, your Honour.  As I go through this, it will become evident – as I have done throughout this whole day.  I have mentioned – I have given reference to the documents that I am talking about.  The High Court has previously adopted principles relating to amendments from the well‑known case of Cropper v Smith.  One example is Queensland v J L Holdings which reproduces a famous passage from Lord Bowen’s judgment as follows:

Now, I think it is a well‑established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights.  Speaking for myself, and in conformity with what I have heard laid down by the other division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done ‑ ‑ ‑

KIEFEL CJ:   Mr Conomy, the Court ‑ ‑ ‑

MR CONOMY:   This is my submissions in support of ‑ ‑ ‑

KIEFEL CJ:   Mr Conomy, which ‑ ‑ ‑

MR CONOMY:   You just do not want this to come before the Court.

KIEFEL CJ:   No, I want you to identify which summons for amendment.

MR CONOMY:   I am going to.  I am getting to that, your Honour.  You are just obstructing me from putting my case for you.

KIEFEL CJ:   I am not obstructing you.  I am trying to understand ‑ ‑ ‑

MR CONOMY:   You are.

KIEFEL CJ:   ‑ ‑ ‑ where you are.

MR CONOMY:   I could have been finished by now but you – I am going to get to that.

KIEFEL CJ:   Please proceed.

MR CONOMY:   I am going to reread that quote from Lord Bowen’s judgment so that there are no errors in the transcript. 

Now, I think it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights.  Speaking for myself, and in conformity with what I have heard laid down by the other division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party.  Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace.

That particular quote is pertinent because this Court treats amendments as some sort of favour, like you are doing me a huge favour.  It is ridiculous.

Applied to this proceeding I submit the following argument in this context.  Firstly, all of my proposed amendments are either due to oversight or merely clarify or improve something which I have been able to identify as a result of the benefits that come with the passing of time.  Secondly, the contradictor has not objected to them – to any of the proposed amendments and has been given plenty of time to react to the potential amendments and in most cases he was advised prior to his acceptance of the amicus role and in the balance of cases he has otherwise been afforded plenty of time to prepare.  Thirdly, the contradictor has no possible claim for any real injustice resulting from any of the proposed amendments being applied because he is installed only as amicus curiae and therefore is not a real party to the proceeding.  He has no case for injustice.  Fourthly, none of the proposed amendments fall into the category of being fraudulent or intended to overreach.  Fifthly, I assure the judiciary that I have very carefully considered my amendments and there is no possible chance that the application of any amendment will weaken my case.  When I am talking about my case, your Honour, I am talking my case as in not just the appeal; I am talking about the summonses and all the interlocutory applications as well. 

So I will just finish this off.  I will just reread that paragraph.  I assure the judiciary that I have been very careful, considered my amendments, and there is no possible chance that the application of any amendment will weaken my case.  So I would ask that the judiciary not perform any consideration in that context.

In recent times the High Court has, upon suitable request, given a verbal decision in the hearing regarding amendment applications to allow the parties to focus their submissions.  In the case of Agius, the High Court actually advised the appellant to amend his case at the hearing and applied that amendment at the hearing to avoid the appeal notice being deemed incompetent – the Agius case is items 4 and 48 in the JBA - again, inequality.  If that is not the definition of “inequality” I do not know what is. 

I therefore request the following amendments to be verbally granted and applied before going any further:  firstly, the amendments identified in the marked‑up version of my proposed amended summons lodged and served 26 July 2019, which amends the initial summons in this proceeding; secondly, the amendments identified in the marked‑up version of my proposed amended notice of appeal lodged 11 June 2019 and the marked‑up version of my proposed further amended notice of appeal lodged and served 10 July 2019, and the marked‑up version of my proposed second further amended notice of appeal lodged and served 23 August 2019 - with regards to that, the last one mentioned, the 23 August 2019 one, that would obviously become the final version.  Lastly, the amendments identified in the marked‑up version of my proposed amended written submissions lodged and served 10 July 2019.

Then the only other things are my affidavits - affidavits X, Y and Z.  So I am seeking to have those affidavits brought in and applied by your Honours – and this is only one page.  It will ‑ ‑ ‑

KIEFEL CJ:   We already have the affidavits and have read them, Mr Conomy.

MR CONOMY:   Yes, but I am giving you a – I am just going through the basis for my argument for why they be accepted, that is all.

KIEFEL CJ:   We have read them.

MR CONOMY:   But I have not argued why they should be accepted – that is what I am saying.

KIEFEL CJ:   Do you mean accepted to be filed?  Is that what you mean?

MR CONOMY:   Accepted and applied in this proceeding.

KIEFEL CJ:   I see.  Well, make those submissions.

MR CONOMY:   Yes.  So this is in relation to affidavits X, Y and Z, sworn 21 August 2019.  The contradictor was served with the affidavits on 21 August 2019 and my intention is to verbally apply for the affidavits to be accepted by the judiciary and taken into consideration was made clear in that correspondence.  There have been no objections from the contradictor.

The original and five copies of the affidavits and associated correspondence were lodged with the Court on 23 August 2019 and again my intentions were clear in a cover letter.  A brief basis and explanation in support of each affidavit being accepted and applied is presented in each of the affidavits.  In addition to that, I just have a couple of paragraphs.

With regard to affidavit X, the evidence presents, in essence, what I was intending to say at the hearing in explanation of the effect of the late changes in directions but was cut off from saying by the Justices.  In these circumstances, the evidence is essential for the Court to properly gauge whether I was denied procedural fairness in the High Court proceeding below.  So that is in addition to what I have said in the affidavit.

With respect to affidavit Y, the evidence presents complications I have encountered as a result of a loss of file by post privileges in further support of my application for reinstatement of that privilege.  With respect to affidavit Z, the evidence gives an account of my recent commitments and available time, which goes to supporting my approach to the relief I seek by way of this proceeding.  I again note that additional supporting contentions are presented in each affidavit.

I apply for all three said affidavits to be accepted and applied in this proceeding and taken into consideration and, if not already done so, I ask the proper person in Canberra to tender those documents as well as the emails which I included, which demonstrate that I contacted the contradictor and gave them notice.  So if I could ask that all of those documents be tendered as are lodged for filing with the Court.

KIEFEL CJ:   They have been made available to the Court, Mr Conomy, to the judges. 

MR CONOMY:   Thank you.  I just want to talk about affidavit S very briefly.  So, yes, there are definitely a couple of other things that relate to the summons which are coming, but it is not going to take long - affidavit S sworn 9 July 2019 and filed 11 July 2019.  I reaffirm my application for that affidavit to be applied by the judiciary as requested and explained in my amended submissions and in the affidavit itself. 

The affidavit was sworn 9 July 2019 and the original and five copies were filed and served on the contradictor on 11 July 2019 and there has been no objection from the contradictor, so I will not spend any more time on that.  Again, I seek a verbal – I will not mention that.  In relation to my chronology filed 21 May 2019, the standard chronology form prescribed in Part 2 that I needed to present:

[List of principal events leading to the litigation, with appropriate references to the appeal book in respect of findings of fact and evidence relating to those events.]

The P3 and P11 of 2019 applications only sought relief from my stalking conviction.  So I obviously only presented the principal events relating to the stalking conviction.  When I say stalking conviction, I am talking about the pursuit charge which is a – a far lesser – it comes under the category of stalking, so.  The chronology was presented only because it was a requirement of the procedural rules for appeals and for no other purpose, despite what the contradictor has tried to suggest. 

The last thing is that with regards to the application for leave to appeal, which was recently dismissed - to appeal from the orders of Gordon J, I note that I had applied – so this is - I will just read it as I have got it here - application for leave to appeal from the case management orders of Gordon J filed 31 July 2019.  I note that I had applied for leave to appeal from the orders of Gordon J in this proceeding.  The application was assigned P40 of 2019 and dismissed by disposition on 20 August 2019 by Bell and Nettle JJ on the basis that the supporting documents to the application for leave form did not identify an arguable ground.

I notify the judiciary that I will be seeking relief from that decision on the basis that I am not required to identify arguable grounds in the supporting documents to the application for leave form.  An applicant is only required to define grounds in the application for leave form, itself.  I corresponded with the Registrar, indicating my interpretation of the disposition and proposed that the wording be corrected if it was not what the judiciary intended.  But that has not happened.  So, I will proceed to seek relief from that decision.  The due date for such relief will be 17 September 2019. 

So, I have put that to one side for now and I will be dealing with that now.  Again, your Honours, whether I address further things, is going to be dependent on whether your Honours are going to be – in considering the summonses – will you be considering the prospects of success of any potential appeal – because if you are, then I have got a hell of a lot to put forward.

KIEFEL CJ:   You do not need to make submissions on that for the purpose of the summonses, Mr Conomy.

MR CONOMY:   Okay.

KIEFEL CJ:   The Court can consider the summonses without that. 

MR CONOMY:   Without any consideration to those appeals?  The prospects of success of‑ ‑ ‑

KIEFEL CJ:   We have not reached that point.  You do not need to make submissions.

MR CONOMY:   So, in other words, yes, you are going to do that.  Perhaps, I think I should ‑ ‑ ‑

KIEFEL CJ:   Mr Conomy, the Court is now going to adjourn shortly to consider the position it will take with respect to the summonses that you have addressed.

MR CONOMY:   Okay.  I will just say I have got amendments.

AT 11:54 AM SHORT ADJOURNMENT 

UPON RESUMING AT 12.00 PM:

KIEFEL CJ:   A number of procedural issues have been raised by Mr Conomy in summonses dated 23 April 2019 as amended, 26 July 2019 and 7 August 2019.  The Court has considered Mr Conomy’s submissions on these matters and finds no basis for the orders sought.  Save for paragraph 3 of the summons dated 26 July 2019, each of the summonses will be dismissed.  Reasons will be provided at a later date.

The effect of not acceding to Mr Conomy’s argument regarding filing by post or deeming the notice of appeal to be filed by 3 April 2019 is that he must seek an extension of time for the filing of the notice of appeal if he wishes to be heard in relation to the matters there raised.

The Court will hear argument from Mr Conomy and from the amicus as to these matters.  This will necessarily entail argument on the grounds of appeal from the orders made by Justices Keane and Edelman on 20 March 2019.  An issue to be considered in this regard is the prospects of Mr Conomy on any appeal.

Mr Conomy, for the purpose of argument that you may wish to make in relation to an extension and the appeal – the prospects of success on an appeal, you may take it that you may proceed on the basis of your last amended version of the notice of appeal.  The amicus, we would note, has proceeded on that basis and the Court will do likewise.

Yes, Mr Conomy.

MR CONOMY:   You want me to do that now, your Honour?

KIEFEL CJ:   Yes, this matter was set down for hearing today so we will hear argument about an extension of time in relation to the appeal and then we will proceed from that point.  The question is whether or not the matter should proceed to appeal and that requires you to argue whether the extension of time should be granted.

MR CONOMY:   That is a completely different principle that you have applied to me.

KIEFEL CJ:   Mr Conomy, you were advised by the ‑ ‑ ‑

MR CONOMY:   What about my application for it to be ‑ ‑ ‑

KIEFEL CJ:   Mr Conomy ‑ ‑ ‑

MR CONOMY:   What about my application for it to be deemed filed on time without an extension of time?

KIEFEL CJ:   That has been dealt with.  Your application in that regard has been dismissed.  Mr Conomy, you were told at the outset when you sought to file a notice of appeal, or lodge it, that you would need an extension of time.  The Court has held the Registrar to be correct in that regard and if you wish your appeal to proceed you must now make an argument about why you should be given an extension of time. 

Now, as I have said, that would involve you in arguing that you have good prospects of success on your appeal because that is a very relevant consideration to the question of whether an extension is given and I think you appreciate all of these matters.

MR CONOMY:   I do not appreciate them, no, but I will do what you are directing me to do.

KIEFEL CJ:   Make whatever submissions you wish.

MR CONOMY:   My submissions for the basis for the prospects of success of my appeal are that when my appeal is determined in the appellate jurisdiction and when my amendments have been effected it will be successful.  I would seek an extension of time in order to take that into more detail.  I was never advised that an appeal hearing was going ahead today and there is no avenue for appeals to be determined in the original jurisdiction of the High Court.  So my submission is that in my appeal, once I have completely presented it, as if on appeal – in fact, I would actually ask your Honours for an order stating that this will be heard in effect as an appeal, as you do with applications for special leave to appeal.

KIEFEL CJ:   That is the effect of what I have just tried to tell you, that we will hear argument as to prospects of success on appeal, which means that you identify how good your argument on appeal would be.

MR CONOMY:   It means you are going to determine my appeal in the original jurisdiction of the Court.  That is what it means - an appeal that was lodged on the due date.  Your Honour, I am going to need 10 minutes to prepare because I was not prepared for this.

KIEFEL CJ:   Very well.

MR CONOMY:   I just need to get ‑ ‑ ‑

KIEFEL CJ:   We will adjourn for 10 minutes and allow you to collect your thoughts.

AT 12.07 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.23 PM:

KIEFEL CJ:   Yes, Mr Conomy.

MR CONOMY:   Yes, your Honour, I have had a chance to think on how to go about this and I have decided that I am going to appeal your decision in relation to dismissing my applications in my summonses and I will ask for an adjournment to do that, and that is the dismissal of my summons requesting that this – my appeal was filed on time, which you have dismissed, and also my request for file by post privileges, which you have also just indicated that you have dismissed.  So I am going to appeal those decisions and prepare that ‑ ‑ ‑

KIEFEL CJ:   Where are you appealing them to?

MR CONOMY:   Well, they are decisions made in the original jurisdiction, so it will be a leave to appeal application.  That is it.

KIEFEL CJ:   Your application for an adjournment is refused on the basis that you have no prospects of success on any such appeal.  Would you please proceed with this matter?

MR CONOMY:   Okay.  There is no – a court has no jurisdiction to decide an application when there is no application before the court, so I object to that, and I will be lodging an application for leave to appeal.

KIEFEL CJ:   Do you wish to be heard further in relation to the application for extension to file a notice of appeal in this matter?

MR CONOMY:   I have prepared my case based on certain parameters and expectations that certain versions of documents would become the relevant documents.  I have targeted my whole case on the principle that my amendments are going to be accepted.  I cannot do that ‑ ‑ ‑

KIEFEL CJ:   But I have already told you, Mr Conomy, that the amicus argument has been addressed to the last application for amendment to the notice of appeal, so we can hear your argument based on the fact that all your amendments to the notice of appeal would be what you were seeking to put forward.

MR CONOMY:   But you mentioned – specifically you mentioned that it would be the ones filed 10 July 2019 but I have made another one ‑ ‑ ‑

KIEFEL CJ:   No, I said the last one.  Is it 26 August or - 23 August?  That is the last ‑ ‑ ‑

MR CONOMY:   So you are talking about the second further amended notice of appeal?

KIEFEL CJ:   Yes, the last one, I think it is 23 August, the last one.  You can proceed upon the basis that - you can put your argument on the basis of that being what you are asking for special leave for.  So that should not present you with any – the difficulty that you have just identified.

MR CONOMY:   Okay.  I would like to give the Court warning, a polite warning, which I think I am allowed to do.

KIEFEL CJ:   I do not think you are, actually.

MR CONOMY:   You have ‑ well, it is a polite ‑ ‑ ‑

KIEFEL CJ:   Mr Conomy, you do not give warnings to the Court, even polite, so would you please proceed with your submissions in this matter.

MR CONOMY:   I am going to be seeking an application for leave to appeal.  I am going to be preparing that application now so I seek an adjournment of this proceedings.

KIEFEL CJ:   You have already asked for an adjournment and the Court has refused that adjournment.

MR CONOMY:   Okay.  Well, I will ask you to make directions that the determination of this matter be put back to a different date.

KIEFEL CJ:   That is the same thing as an adjournment and that is refused.

MR CONOMY:   Yes.

KIEFEL CJ:   You either proceed with submissions or you rely upon the written submissions that you have already put in.  You do not have to make further oral submissions but if you do wish to do so now is the time to do it.

MR CONOMY:   I am going to opt not to on the following basis.  What you have effectively ordered today says that you have accepted my amended documents which were filed by post, but you are not accepting my appeal notice which was filed by post.  On that basis, I will be taking international –yes.  I object.

KIEFEL CJ:   I take it that you do not wish to make any further submissions, Mr Conomy.

MR CONOMY:   I do not know what to do.

KIEFEL CJ:   Well, Mr Conomy, you either make additional submissions or you rely upon the written submissions that you have put in.  If you are not going to make oral submissions we will proceed with the matter.

MR CONOMY:   I need time to prepare as a result of your decision that you have made today.  People need time to ‑ ‑ ‑

KIEFEL CJ:   Well, I do not accept that, Mr Conomy, because you were told what the Court was going to be dealing with today and you should have been prepared.  You should not have assumed success in relation to the matters that you have put forward.  You were told what the Court would be dealing with and it was not just the summonses that you filed subsequent to this matter being set down for complete hearing.  If you have no further submissions ‑ ‑ ‑

MR CONOMY:   I will do my best.  So, your Honour, just to clarify – my second further amended notice of appeal, the amendments have been accepted?

KIEFEL CJ:   No, I am not saying that.  I am saying that you may proceed to argue on the basis of what you would seek to put in your case, that you would be seeking leave to amend as well as special leave in relation to some matters and argument in relation to it.  The amicus, as you appreciate, has proceeded upon the basis that this might be the argument that you want to develop on any appeal.  So the Court is prepared to proceed upon that basis to give you the fullest opportunity of articulating the argument which you say you want to do, but that is not to say that formally any document has been accepted or that leave has been granted to make the amendments but you may proceed to argue it in the way in which you would seek to do.

MR CONOMY:   Your Honour, if there is a direction that this should be heard as if on appeal I would be happy to do that, if you make that direction.

KIEFEL CJ:   I do not need to make that direction.  I have told you what the Court is prepared to hear.

MR CONOMY:   Okay.  Well, that tells me a lot.  I sit here in protest and I neither deny or agree to make verbal submissions.  I just sit here null, in protest.

KIEFEL CJ:   All right, Mr Conomy, you have had your opportunity.  Mr Horan, the Court has been assisted with the submissions you have made ‑ ‑ ‑

MR CONOMY:   Your Honour, I take that back.

KIEFEL CJ:   ‑ ‑ ‑ but the Court will not be further assisted.  The Court will now adjourn ‑ ‑ ‑

MR CONOMY:   I take that back, your Honour.

KIEFEL CJ:   The Court will now adjourn and give its decision at 4.00 pm this afternoon, Eastern Standard Time.

AT 12.33 PM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 4.01 PM:

KIEFEL CJ:   This matter was heard in Canberra today by a Court constituted by Justices Bell, Gageler, Nettle, Gordon and me.  After hearing Mr Conomy in relation to the procedural issues raised in his summonses dated 23 April 2019, as amended on 26 July 2019, and 7 August 2019 the Court made an order that each of the summonses will be dismissed.  The Court now pronounces a correction to that order so that it reads:  “Save for paragraph 3 of the summons dated 26 July 2019, each of the summonses will be dismissed”.

Justices Bell, Gageler, Nettle, Gordon and I would dismiss paragraph 3 of the summons dated 26 July 2019.  I publish our joint reasons.

The order of the Court is:

1.Paragraph 3 of the applicant’s summons dated 26 July 2019 is dismissed with costs.

I publish that order.

The Court will now adjourn to 10.00 am on Tuesday, 10 September 2019.

AT 4.02 PM THE MATTER WAS CONCLUDED