Croome & Anor v State of Tasmania

[1995] HCATrans 362

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart   No H4 of 1995

B e t w e e n -

RODNEY CROOME and NICHOLAS TOONEN

Respondent Plaintiffs

and

THE STATE OF TASMANIA

Applicant Defendant

Application for leave to file a conditional appearance

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM HOBART BY VIDEO LINK TO CANBERRA

ON WEDNESDAY, 6 DECEMBER 1995, AT 9.29 AM

Copyright in the High Court of Australia

MR W.C.R. BALE, QC:   I appear for the applicant who is the defendant in the proceedings.  (instructed by the Director of Public Prosecutions (Tasmania))

HIS HONOUR:   Before you proceed, Mr Solicitor, the matter is in chambers.  Have you any objection to the chambers being in open Court?

MR BALE:   None whatever, your Honour.

HIS HONOUR:   Very well.  The chambers will be in open Court.  Yes, Mr Solicitor?

MR BALE:   Your Honour, this is an application under rule 4 of Order 11, for leave to file a conditional appearance in these proceedings.  In my submission the writ and statement of claim give rise to a number of issues which are appropriately dealt with by way either of an application to set aside the writ and statement of claim, or otherwise under Order 63 for a permanent stay.  The issues that I have in mind include, firstly, the issue of jurisdiction.  Alternatively, the issue of an abuse of process of the Court and, thirdly, the issue of standing.  This particular application is to ensure that by the filing of a conditional appearance the issue of want of jurisdiction is not compromised. 

HIS HONOUR:   Yes.

MR BALE:   That a conditional appearance is the appropriate mechanism for doing that is, in my opinion, well established, and in a list of authorities forwarded to the Court I have drawn your Honour’s attention to two authorities which, in my submission, either establish or recognise that principle.

HIS HONOUR:   I do not think you need to develop that, Mr Solicitor.

MR BALE:   I am obliged to your Honour.

HIS HONOUR:   There are two matters in question:  first of all, I will need to obtain from you the material on which  you rely and the second is, on the making of an order under rule 4 of Order 11, is it appropriate to impose a condition that the application be taken out?  That is, the application to set aside or a challenge to the jurisdiction be taken out within a limited time?

MR BALE:   I would not oppose such a condition, your Honour.  We are in a position to do that quite promptly.

HIS HONOUR:   Yes.  Then, let me have the material on which you rely.

MR BALE:   Yes, your Honour.  The factual material is contained in the affidavit of the Director of Public Prosecutions, which has been filed in support of the application and I seek leave to read that affidavit.

HIS HONOUR:   First of all, your application is on the summons, I take it?

MR BALE:   Yes it is, your Honour. 

HIS HONOUR:   And the affidavit of the ‑ ‑ ‑

MR BALE:   - - - Director of Public Prosecutions.

HIS HONOUR:   Yes.

MR BALE:   It is a very short two‑paragraph affidavit which your Honour should have before you and it simply indicates, in essence, that no charges have been laid against either of the plaintiffs under the sections of the Code which they seek to challenge.

HIS HONOUR:   Yes.  I do not think you need to take it any further, Mr Solicitor.  I am prepared to make an order.

MR BALE:   Yes, may it please your Honour.

HIS HONOUR:   There will be an order that the defendant named in the writ have leave to enter a conditional appearance on the undertaking of counsel for the defendant that proceedings to object to the jurisdiction or to set aside the writ be taken within, shall I say, 14 days?

MR BALE:   That is adequate, your Honour, thank you.

HIS HONOUR:   Yes, it will be taken within 14 days.  Very well, there will be an order accordingly.

MR BALE:   Your Honour, may I seek, if it is appropriate, that an order that the costs of this application be costs in the cause?

HIS HONOUR:   Costs will be reserved.

MR BALE:   Yes, may it please your Honour.

HIS HONOUR:   Thank you Mr Solicitor.

AT 9.34 AM THE MATTER WAS ADJOURNED