Flint v Lowe

[1996] HCATrans 97

IN THE HIGH COURT OF AUSTRALIA

Registry  Nos C37 and C38 of 1995

B e t w e e n -

DENISE CHARLENE FLINT

Applicant

and

ANDREW JAMES LOWE

Respondent

Application for vacation of hearing date

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 4 APRIL 1996, AT 9.57 AM

Copyright in the High Court of Australia

MR J.W. BUNDOCK:   I appear for the appellant.  (instructed by Hanstein, Stacy & Nyman)

MR M.J. IERACE:   If your Honour pleases, I appear for the respondent.  (instructed by the ACT Director of Public Prosecutions)

HIS HONOUR:   Yes, Mr Bundock.

MR BUNDOCK:   This is an application, your Honour, to vacate the hearing date.  I tender my affidavit, your Honour.  The affidavit has been filed.

HIS HONOUR:   Is your affidavit sworn 2 April?

MR BUNDOCK:   Yes.

HIS HONOUR:   Any objection to that?

MR IERACE:   No objection, your Honour.

HIS HONOUR:   All right.  I did take the opportunity to read that.  Now, there is a preliminary question, is there not, on this application for special leave.  There will be a preliminary question, namely, it was filed out of time, was it not?

MR BUNDOCK:   Yes, that is right, your Honour.

HIS HONOUR:   It was late, so you need an extension of time in the first instance on that from the panel of the Court hearing the leave application..

MR BUNDOCK:   Yes, that is right.

HIS HONOUR:   Now, is there any particular reason why some other counsel would not be available, given the nature of this matter?

MR BUNDOCK:   It is a complex issue even though it has very modest ‑ ‑ ‑

HIS HONOUR:   It is not particularly complex.

MR BUNDOCK:   Mr Sweeney appeared in the courts below and is fully conversant with the issue.  He has drafted the notice of appeal and it would

be to my client’s disadvantage were he not to conduct the appeal in this Court?

HIS HONOUR:   Why?

MR BUNDOCK:   Because, your Honour, he has advised on the appeal; he knows the issues.

HIS HONOUR:   It would take any competent junior two or three hours to get this matter up; any competent senior junior counsel on my estimation of it.

MR BUNDOCK:   I cannot take it much further.

HIS HONOUR:   On my estimation of it it is not a particularly complex matter.  It may be an important matter to your client and it may be an interesting and significant point in it but to grasp it is not a matter of great intellectual complexity nor is it the sort of case that involves some issue in a particular area of law in which there is not a generally available expertise at the Bar.  It would be one thing if it was a patent appeal but it is not that sort of area.

MR BUNDOCK:   At this stage, your Honour, it would be difficult now to brief because of Easter coming and in having to have counsel prepare submissions by, I think, it is 12 or 13 April.

HIS HONOUR:   That is some days away.  How long ago was this problem appreciated?

MR BUNDOCK:   Almost immediately it was set down, your Honour.  I contacted the Court on, I think it was, the day after it was set down.  I cannot take that any further, your Honour.

HIS HONOUR:   Yes, thank you.  What is the other side’s view of this?

MR IERACE:   Your Honour, the application is neither consented to nor opposed.  That is my instructions in relation to that.  It is a matter for the Court.

HIS HONOUR:   What as to the application that will have to be made on the hearing of the leave application for an extension of time?

MR IERACE:   I cannot assist your Honour.

HIS HONOUR:   You are not sure at this stage?

MR IERACE:   I do not have instructions in relation to that aspect of it.

HIS HONOUR:   All right.

This is an application in respect of an application for special leave which is presently pending in the list for hearing on 24 April 1996 before the Court in Canberra.  The applicant for special leave seeks that the fixture of that date for the hearing of the application for special leave be vacated. The ground advanced is the circumstance that senior counsel who has previously had the carriage of the matter will be unavailable on that date.

Having regard to the nature of the matter and the circumstances generally, there appears to me to be no good reason why the ordinary rule should not prevail.  Matters once fixed for hearing in the special leave list should remain there to be disposed of accordingly.  The matter is not one in which, in my judgment, there should be any great difficulty in briefing alternative counsel who can be sufficiently versed in the matter for it to be disposed of on the indicated date.

Accordingly, the application for vacation of the date is refused.  Do you want to say anything about costs?

MR IERACE:   No, your Honour.

HIS HONOUR:   Should I make costs of the application today the costs of the special leave application?

MR IERACE:   Yes, your Honour.

HIS HONOUR:   All right.  I so order.

AT 10.04 AM THE MATTER WAS CONCLUDED