Endresz v Whitehouse

[1999] HCATrans 454

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

MelbourneNos M56, M57, M58, M59, M60, M61, M62 and M63 of 1997

B e t w e e n -

ALLAN PAUL ENDRESZ

Applicant

and

PATRICK JOHN WHITEHOUSE

Respondent

Application for an adjournment

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 DECEMBER 1999, AT 2.59 PM

Copyright in the High Court of Australia

MR D.H. DENTON:   If the Court pleases, I appear for the applicant. (instructed by Cain & Cleeves)

MS L. LIEDER, QC:   If the Court pleases, I appear for the respondent in this matter. (instructed by the Director of Public Prosecutions (Commonwealth))

GLEESON CJ:   Yes, Mr Denton.

MR DENTON:   If your Honours please, my application is actually one to adjourn the hearing of the special leave application.  Inquiries were made by my instructing solicitor at the beginning of this week with a view to try to make this matter returnable for a single Judge rather than before this Full Court.  Due to obviously the time constraints of the Court and other business, that has just not been able to be done.  Your Honours have probably had the chance to read the brief affidavit, which sets out the ‑ ‑ ‑

GLEESON CJ:   This is the affidavit of Lucia Bolkas?

MR DENTON:   No, your Honour, I do not have any affidavit of Ms Bolkas; I have the affidavit of Mr Cain.

GLEESON CJ:   Just a moment:  Peter Michael Cain?

MR DENTON:   Peter Michael Cain, yes, your Honour.  I do not have any affidavit of Ms Bolkas.

GLEESON CJ:   Let us just read the affidavit of Mr Cain.  Just remind us, what was the date of the judgment against which you are seeking ‑ ‑ ‑

MR DENTON:   Your Honour, sometime ‑ ‑ ‑

GLEESON CJ:   I realise there are eight of them, but let us just call it one.

MR DENTON:   It is 1997, your Honour.

GLEESON CJ:   1997?

MR DENTON:   Yes, your Honour.

GLEESON CJ:   Well, why is the matter still on the list; why has it not just been thrown out?

MR DENTON:   Your Honour, at the beginning of this year, in the original jurisdiction, a writ of summons was taken out by my client to seek to set aside the entire special leave procedure and that is in proceeding M122 of this year.  In that proceeding list, the defendants, the Commonwealth, has, through the Director of Public Prosecutions and the Commonwealth in its own right, have filed defences in that proceeding and a case stated as drafted by my client was provided to the other side.  They have not agreed to that and they have provided us with a draft and we have not agreed with that, and matters tended to drift a little in that proceeding, but, not by much, your Honour.  I think we submitted our draft to the Commonwealth in its respective capacities at the end of June or July and they replied at the end of August, 30 August, with their drafts.  Really, what has happened since then is very little, other than with this special leave ‑ ‑ ‑

GLEESON CJ:   So what is the reason why this extraordinarily ancient set of applications for special leave to appeal should be adjourned?  I can think of something else that perhaps ought to be done to them, but why should they be adjourned?

MR DENTON:   That, I am conscious of, the Court’s otherwise disposition towards this, but what we say, your Honour, that if we are successful in the other proceeding, that really, it is question of chicken and egg is what I am putting to the Court here, which ought come first?  We say that we should not be called upon to proceed with the special leave application, because if we are successful in the other proceeding, which would require the Court to overturn the decision in Smith-Kline - I do not shy from saying that, your Honour; it is a large task obviously, but if we are successful in having the Full Bench of the Court reconsider that and accept our submissions in that proceeding, that special leave proceeding is unnecessary or that indeed it is unconstitutional, then there is no need to bring this proceeding on at all.

GLEESON CJ:   In paragraph 8 of the affidavit that you rely on, it said:

The applicant would be prejudiced in this proceeding should the special leave applications be called on and heard prior to the substantive challenge to the special leave procedure –

Why is that?

MR DENTON:   Well, your Honour, what we see is that there is a chance that our standing may be challenged in the other proceeding if we do not show that we are necessarily aggrieved by any decision as such.

GLEESON CJ:   It would make it obvious that you are aggrieved.  If your applications for special leave to appeal succeed, the problem disappears; if your applications for special leave to appeal fail, that will demonstrate the importance of your argument that you are entitled to come to this Court as of right.  It is the only way you can get here.

MR DENTON:   That is, your Honour, an excellent submission, which I will undoubtedly adopt, your Honour, with the greatest of respect.  However, there is no unanimity at the Bar table that that may necessarily follow, not that there has been any concessions sought from the other side to assist us in prosecuting the other matter, but, we say, in short, that, your Honour, I certainly am in no position to be able to proceed with the special leave application myself.  I am just personally embarrassed by it and, if this application to adjourned is refused, I am not able to do so, and I will withdraw and my client would anxiously step into the breach to make his application, which…..follow.

GLEESON CJ:   Yes, well we are familiar with that method of approach to this.

MR DENTON:   It is not a threat, your Honour.

GLEESON CJ:   Is there anything else you want to say in support of your application for an adjournment?

MR DENTON:   No, your Honour, I think that really ‑ ‑ ‑

GLEESON CJ:   We do not need to hear you on the application for adjournment.

This is an application to adjourn applications for special leave to appeal which are listed for hearing together.  The applications are for special leave to appeal against decisions of the Court of Appeal of the Supreme Court of Victoria on 17 June 1997.  Why these applications are still on foot and have not been dismissed for want of prosecution before now is not immediately apparent.  However, the ground of the application for adjournment is that there are also pending proceedings by the applicant in which the applicant seeks to challenge the constitutional validity of the legislative basis for the requirement for special leave, and in that respect he will invite this Court to overrule its earlier decision in the Smith‑Kline Case. 

That is not a sufficient ground for adjourning these applications which are long overdue for hearing.  The application for adjournment is refused.

MR DENTON:   As I indicated then, if the Court would please note then I have no instructions to - - -

GLEESON CJ:   Yes, we know that, Mr Denton.

AT 3.07 PM THE MATTERS WERE CONCLUDED