Fernando, application by

[1999] HCATrans 424

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S205 of 1999

In the Matter of an Application
by IRIS FERNANDO for leave to issue
a proceeding

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 29 NOVEMBER 1999, AT 10.08 AM

Copyright in the High Court of Australia

MR S.J. ODGERS:   If it please your Honour, I appear for the applicant.  (instructed by Western Aboriginal Legal Service Ltd)

MR A.M. BLACKMORE:   Your Honour, I appear for the Crown and, if necessary, I seek leave in that regard.  (instructed by the Solicitor for Public Prosecutions (New South Wales))

HIS HONOUR:   Yes, Mr Odgers.

MR ODGERS:   Yes, your Honour.  First, I would read two affidavits which have been filed in the Court.

HIS HONOUR:   I have read them.  They can be taken as read.

MR ODGERS:   Thank you, your Honour.

HIS HONOUR:   Can I just have the names of those?

MR ODGERS:   Iris Fernando, and that affidavit is dated 17 November 1999, and Ida Lawrance, 19 November 1999.  I should indicate Mrs Fernando is in Court, your Honour.

HIS HONOUR:   Yes.

MR BLACKMORE:   Could I formally object to just one paragraph of Ms Lawrance's affidavit, that is paragraph No 7.  It would seem to me to be a prediction in form and content.  It is an opinion which is not admissible under the Evidence Act.  I do not think it takes the matter much further.  It is more in the form of a submission, really.

HIS HONOUR:   Yes.  You cannot support that, can you?

MR ODGERS:   No, I cannot, your Honour.

HIS HONOUR:   I reject paragraph 7 of the affidavit of Ida Lawrance, sworn on 19 November.

This case obviously raises some interesting points of principle and procedure.  I think you have a hard road to hoe, Mr Odgers, but having said that, my present inclination is to let the matter go forward.  One matter that you might refer to, on the question of Mrs Fernando's interest, is a passage in the judgment of Chief Justice Mason, Deane and myself in Annetts v McCann, 170 CLR, where we said - the appellants in that case who were the parents of a deceased person had a right to be represented at a coronial

inquiry and we said that the interests which they represented included the protection of the reputation of their deceased son and it did not matter, except for jurisprudential analysis whether the interest is classified as the interest of the deceased or the interest of the appellants, as the parents of the deceased, or both, whatever interest was adopted.  The appellants had a common law right to be heard in opposition to any potential adverse finding in relation to themselves and their deceased son.

Now, that is not quite in point but you might get some assistance from it.

MR ODGERS:   Thank you, your Honour.

HIS HONOUR:   Mr Blackmore - - -

MR BLACKMORE:   Your Honour has my written submissions.  I would just be repeating myself if I said any more.

HIS HONOUR:   Yes.  I thought perhaps the best way this could be dealt with is to give leave to issue the process, then allow both matters to come before the Court hearing the special leave application.  You can take the point about interest at that stage.

MR BLACKMORE:   Essentially, I see it is a standing point and - - -

HIS HONOUR:   It is, yes, and if the Court took the view that otherwise there was a grant of special leave, it may be that a grant would be made subject to your right to take the point before a Full Court.

MR BLACKMORE:   Yes.

HIS HONOUR:   I have examined various ways of looking at it as to whether I should state a case but I do not think I have jurisdiction to state a case because there is no proceeding in the Court at the moment.  In fact, there has not even been a proceeding commenced.

MR BLACKMORE:   That is right.

HIS HONOUR:   So, I think, procedurally, this is the best way to have it dealt with.

MR BLACKMORE:   Yes, it is an interesting point.

HIS HONOUR:   It is interesting but its answer seems reasonably clear.  But Mr Odgers may be able to persuade the Court there is a sufficient interest in Mrs Fernando, either in her own right or as the personal representative of the deceased. 

MR BLACKMORE:   Could I just clarify one issue with your Honour?  We submit that section 77V does not apply to leave applications.

HIS HONOUR:   I understand that but it is a question of construction; it is a question of whether it is purely procedural. 

MR BLACKMORE:   Sure.

HIS HONOUR:   Subsection (1) seems to assume, in effect, that there would be some cause of action which could be revived.

MR BLACKMORE:   The reason I raise it is I note that Mrs Fernando is not, at this stage, a personal representative.

HIS HONOUR:   No.

MR BLACKMORE:   And that would be a hindrance to her making the application if the Court was to view it as a section 77V application.

HIS HONOUR:   I appreciate that. If 77V was given a wide construction, there may be a question as to whether or not it is consistent with Chapter III of the Constitution, so there may be some problems about that. Another matter that may be of some importance on the question of interest is whether the Crown could be said to be a proper contradictor now that the applicant is dead. Does the Crown have an interest in maintaining a conviction after a person is dead? It may well have but it certainly does not have the same interest in maintaining the conviction as during the lifetime of the deceased.

MR BLACKMORE:   No, that is true.  That must be right.  But, there again, I mean, whilst interest is diminished on both sides, perhaps there is enough of an interest in both parties.  That is the argument, I suppose.

HIS HONOUR:   Yes.  Well, I think, pursuant to Order 58, I will grant leave to issue the proceedings in this matter No S205 of 1999.  I will probably, perhaps, need to make an order concerning the special leave hearing in relation to that matter.  Do you need any directions concerning this going forward, this part of the special leave?  I do not think you do.

DEPUTY REGISTRAR:  I do not think so.

HIS HONOUR:   No.  Well, administratively, you will need to have Mrs Fernando's application - - -

MR ODGERS:   We will put in all those documents, your Honour.  I understand it is not likely to be heard this year.  I understand it is more likely to be in March.

HIS HONOUR:   Is that so?  I thought it was probably going to be heard in December.

DEPUTY REGISTRAR:   Your Honour, I think that now there is not sufficient time for the December list which is full in any event.  I am envisaging maybe February or March next year.

HIS HONOUR:   Yes.  Well, there is plenty of time.  Thank you, gentlemen.  Is there any further order that either counsel - - -?

MR ODGERS:   No, your Honour.

MR BLACKMORE:   No, your Honour.

HIS HONOUR:   Yes, thank you.  Adjourn the Court to Sydney tomorrow.

AT 10.17 AM THE MATTER WAS CONCLUDED