de Williams v Williams

[1989] HCATrans 312

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S97 of 1989

B e t w e e n -

~.ARIA TERESA CARVAJAL de WILLIAMS

Applicant

and

ROBIN KENNETH WILLIAMS

Respondent

Application for special leave to

appeal

McHUGH J	BRENNAN J
TRANSCRIPT OF .PROCEEDINGS
AT SYDNEY ON FRIDAY, 8 DECEMBER 1989, AT 12.31 AM
Copyright in the High Court of Australia
SlT 9 /1 /RB 1 8/12/89
de Williams

MASON CJ

MASON CJ: Well, I am astonished that it did not occur to

somebody to take out a motion of some kind, so that

the matter was raised in open court. That is how it

should be dealt with.

MR ROSE:  Yes, Your Honour. I cannot do more than give the

explanation that I have given. We were informed most categorically that the matter would not be relisted,

even on a mention basis.

BRENNAN J: Why should you not go back and make a substantive

motion and argue the point? If the court refuses to

list it, then you can take action about it.

MR ROSE:  With respect, Your Honour, that would certainly be

the preferable course and it would be a question then

of whether or not the court did consider itself functus

for the purpose of entertaining any subsequent

application as judgment had been delivered and orders

had been made. But certainly, Your Honours, that would

certainly be a preferable course in terms of time as

well as expense.

MASON CJ: The appropriate course seems to be to stand this matter over to give you an opportunity, subject to anything that Mr Brereton may have to say, so as to

avoid the necessity of the matter engaging our

attention hereafter. What do you say, Mr Brereton,

about that?

MR BRERETON: In my submission, if the Court pleases, that is

the course that should have been taken in the first

place. Special leave, if it be granted, should be granted to appeal from the court's refusal to hear

such an application and not from its present order.

This application is premature. It should not be stood over but should be dismissed and the matter should come

back the court on a fresh application at the appropriate

time.

MASON CJ: Technically speaking, you may be right, but it seems

a rather severe course for the Court to take at this
stage.

MR BRERETON: If that is the way the Court is minded, I do not want to waste the Court's time on that sort of issue.

If that course were to be taken, I would seek the costs

of today.

MASON CJ: In the circumstances, we shall stand the matter over

to a date to be fixed to enable the applicant to take

the steps which have been indicated and we will reserve

the costs of the application so far.

AT 12.37 PM THE MATTER WAS ADJOURNED SINE DIE

SlT9/3/RB	3	8/12/89
de Williams