Conomy, In the matter of

[2019] HCATrans 141

[2019] HCATrans 141

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P22 of 2019

In the matter of -

JERROD JAMES CONOMY

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO PERTH

ON WEDNESDAY, 3 JULY 2019, AT 2.15 PM

Copyright in the High Court of Australia

MS R.J. SHARP:   If the Court pleases, I appear on behalf of the Attorney‑General of the Commonwealth for the purposes of the directions hearing.  (instructed by Australian Government Solicitor)

HER HONOUR:   Thank you.  Has Mr Conomy appeared in Perth, sir?

COURT OFFICER:   There is nobody in Perth, your Honour.

HER HONOUR:   Would you mind going outside and calling the matter for me please just to check?

COURT OFFICDER:   Yes, your Honour.

HER HONOUR:   Thank you.

COURT OFFICER:   He is not there, your Honour.

HER HONOUR:   Thank you very much.  I note on the transcript that the applicant has not appeared.

On 20 March 2019, Keane and Edelman JJ made orders in each of P3 of 2019 and P11 of 2019 under s 77RN(2) of the Judiciary Act 1903 (Cth) that, relevantly, the applicant, Mr Conomy, “be prohibited from instituting any further proceedings in this Court relating to the convictions the subject of Conomy v Maden [2016] WASCA 30 and Conomy v Maden [2016] WASCA 31”. I will refer to those orders as the 20 March 2019 orders.

Mr Conomy’s notice of appeal against the 20 March 2019 orders, filed pursuant to s 34 of the Judiciary Act, was lodged out of time. On 23 April 2019, Mr Conomy filed a summons seeking, among other things, an order pursuant to rr 2.02 and 4.02 of the High Court Rules 2004 (Cth) that the time fixed by the Rules for the filing of that notice of appeal be enlarged.

On 9 May 2019, Mr Conomy filed a Core Appeal Book.  On 21 May 2019, he filed a chronology.

The next day, on 22 May 2019, I ordered that, relevantly, the summons be referred for consideration by the Court that deals with any appeal in P22 of 2019.

On 11 June 2019, Mr Conomy filed written submissions and a Book of Further Materials. 

On 24 June 2019, Mr Conomy was sent a hearing letter by a Deputy Registrar notifying him, among other things, that P22 of 2019 had been listed for hearing by the Full Court on 5 September 2019 which would include both his summons and any appeal following on from that summons if time was enlarged.

On 28 June 2019, the Deputy Registrar sent a further letter to Mr Conomy setting out a brief history of P22 of 2019 and noting that both Mr Conomy’s summons, and any appeal, concerned the making of the 20 March 2019 orders under s 77RN(2) of the Judiciary Act, a Commonwealth Act.  The letter notified Mr Conomy that the proceeding would be listed for directions today, 3 July 2019.  The letter also stated that a copy of the letter would be sent to the Australian Government Solicitor, directed to the Attorney‑General of the Commonwealth, in relation to the possibility that a contradictor be appointed to appropriately put forward any opposing view to those set out in Mr Conomy’s submissions.  Mr Conomy was asked to confirm his appearance at this directions hearing by video link from Perth.

Yesterday, on 2 July 2019, Mr Conomy wrote to the Court stating that he was unable to attend this directions hearing and in lieu of appearance, he requested that a number of points be considered.  I have read Mr Conomy’s letter.

I also note that as a result of a letter being sent to the Australian Government Solicitor, dated 28 June 2019, that Ms  Sharp, instructed by the Australian Government Solicitor, has attended Court today.

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.

Ms Sharp.

MS SHARP:   If the Court pleases.  I thank the Court for those introductory remarks setting out the background.  I only note that there was another communication received from the appellant on 28 June 2019 that was not mentioned in your Honour’s summary.

HER HONOUR:   No, the reason for that, Ms Sharp, is that his letter to the Court on 26 June – I withdraw that ‑ ‑ ‑

MS SHARP:   On 2 July.

HER HONOUR:   ‑ ‑ ‑ on 2 July, on my view, seemed to replace everything that had gone before it.

MS SHARP:   It is substituted, indeed, in the later communication on 2 July.

Your Honour, I am briefed today to seek some further time for a response from the Attorney‑General in relation to whether he agrees to be appointed a contradictor or one will be nominated.  However, I am instructed that a brief has gone to the Attorney with a positive recommendation about that and we have also prepared some proposed orders that can be made, notwithstanding the final decision is yet to be made, so that the matter can be progressed ‑ ‑ ‑

HER HONOUR:   Otherwise I will appoint you.

MS SHARP:   ‑ ‑ ‑ with a view to the hearing on 5 September.  I am instructed that it takes some time for the Attorney‑General to consider ‑ ‑ ‑

HER HONOUR:   I understand that.

MS SHARP:   ‑ ‑ ‑ and wishes to make those decisions.

HER HONOUR:   So at the moment the orders that I had proposed to make was to identify a particular person that would be appointed amicus and that can be by counsel’s name.

MS SHARP:   It can, your Honour.  I do not have instructions in relation to that.  I am instructed to appear and indicate the position from the Attorney‑General’s point of view.

HER HONOUR:   So what are the orders that you are proposing?

MS SHARP:   If I could hand up a draft; they are timetabling orders just in terms of preparing the matter for hearing on 5 September.

HER HONOUR:   Right.  Well, there are only two steps to be taken:  it is appointment and submissions, as far as I am concerned.

MS SHARP:   That is so, your Honour.  The first order your Honour will see there is for the appellant to file and serve an amended notice of appeal.  This was mooted in his earlier summons and in the communications with the Court that he wanted to file an amended ‑ ‑ ‑

HER HONOUR:   Yes.  Well, absent him being here to prosecute his requests, Ms Sharp, my present indication is to address none of Mr Conomy’s matters.  Despite his letter, it would seem to me that absent an attendance to prosecute them and especially in circumstances where the matter has been referred to the Full Court, the Full Court will consider those matters when it hears it.

So for present purposes, it will just be, as I said, the appointment of named counsel as amicus would seem to be the appropriate order, that amendment of Part 44 to treat the amicus as respondent. The third would be that the amicus file and serve written submissions on or before a particular date. The fourth would be that the applicant file and serve any written submissions in reply on or before a particular date. And, finally, I would seek to impose upon the AGS that they prepare the electronic court book – joint book of authorities.

MS SHARP:   They are largely the orders that were proposed.  Your Honour, ignoring proposed order 1, proposed order 2 is the appellant to file outline of submissions ‑ ‑ ‑

HER HONOUR:   He is an applicant, he is not an appellant.

MS SHARP:   Applicant.  I apologise, your Honour.

HER HONOUR:   He has already filed his outline of submissions; they are on the Court file.

MS SHARP:   Thank you, your Honour.  So then there is ‑ ‑ ‑

HER HONOUR:   As I said, at the moment the orders will be – as I said, ordinarily it would be named counsel be appointed.

MS SHARP:   Yes.

HER HONOUR:   If you want to do it by way of contradictor ‑ ‑ ‑

MS SHARP:   We are in the Court’s hands about the process, your Honour.

HER HONOUR:   It is really also a question of protection of costs and so one of the reasons why appointment of amicus, in a sense, it is in your own client’s best interests.

MS SHARP:   Yes, your Honour.

HER HONOUR:   What I am going to do is – the order will be that counsel to be identified by the AGS by – how long do you think you need?

MS SHARP:   My instructions were by 19 July, your Honour.

HER HONOUR: By 19 July 2019, be appointed amicus in relation to the applicant’s summons dated 23 April 2019 and any appeal. Second, for the purpose of Part 44 the amicus is to be treated as the respondent. Third, the amicus file and serve written submissions on or before Friday, 2 August. Fourth, the applicant file and serve any written submissions in reply on or before Friday, 16 August. Fifth, as I said, I am going to ask, if I may, that the Australian Government Solicitor file and serve an electronic copy of the joint book of authorities prepared in accordance with the requirements of Practice Direction No 1 of 2017 on or before Wednesday, 28 August.

MS SHARP:   If the Court pleases.  Unless I can be of any further assistance.

HER HONOUR:   Just so I am clear, I will repeat those orders so everyone is clear if that would help.

MS SHARP:   Yes, your Honour.

HER HONOUR:   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.

3.The amicus curiae file and serve written submissions on or before Friday, 2 August 2019.

4.The applicant file and serve any written submissions in reply on or before Friday, 16 August 2019.

5.The Australian Government Solicitor file and serve an electronic copy of the Joint Book of Authorities prepared in accordance with the requirements of Practice Direction No 1 of 2017 on or before Wednesday, 28 August 2019.

MS SHARP:   Thank you, your Honour.

HER HONOUR:   I am very grateful both to you and to your instructor.  Adjourn the Court.

AT 2.28 PM THE MATTER WAS ADJOURNED