Frugtniet v Attorney-General of NSW

[1998] HCATrans 154

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S52 of 1997

B e t w e e n -

BRIAN FRUGTNIET

Applicant

and

THE ATTORNEY-GENERAL OF NEW SOUTH WALES

First Respondent

THE MINISTER OF CORRECTIVE SERVICES

Second Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 19 MAY 1998, AT 1.03 PM

Copyright in the High Court of Australia

MR N. PAPAS:   May it please the Court, I appear with the applicant.

MS M. LATHAM:   May it please the Court, I appear for the respondent.  (instructed by the Crown Solicitor for New South Wales)

KIRBY J:   Yes, Mr Papas.

MR PAPAS:   Your Honours, firstly, if I might be permitted to make the point that the papers that were originally filed in the application book were drafted by the applicant’s wife.  I am sure your Honours will have seen that from the ‑ ‑ ‑

KIRBY J:   Yes, do not worry too much about that but the real question that is concerning me is whether this is really still a live issue.

MR PAPAS:   Yes, your Honours, and, of course, I understand that that is going to be ‑ ‑ ‑

KIRBY J:   We have so much to do, we simply cannot take on theoretical points.

MR PAPAS:   I understand that, your Honours, and might I address that immediately because as my plane wings ‑ ‑ ‑

KIRBY J:   That is the hurdle you have really got to jump over.

MR PAPAS:   I could not accept that and the reverse of things flowing ‑ ‑ ‑

KIRBY J:   I mean, there may well be points as is demonstrated by the different opinions in the Court of Appeal but the real issue is whether this is a matter which we have to deal with in this case.

MR PAPAS:   And my learned friends’ writings in the matter - I do not know what paragraph it is in the application book now, for the moment, but my learned friend identifies it even if it was a point of general importance it is hypothetical.  I understand I need to persuade your Honours that it is not simply hypothetical.

KIRBY J:   What do you say?

MR PAPAS:   Your Honours, firstly, if you would permit me to identify that at the time when the application was made to the Court of Appeal he was still in custody in New South Wales.  The fact that he has been removed since that date to Victoria and has been released is a matter of coincidence of time in terms of the matter getting before this Court.

KIRBY J:   Yes, but it is the fact that is the fact that comes in the case before us.

MR PAPAS:   Yes, your Honour.  Secondly ‑ ‑ ‑

HAYNE J:   What consequence happens if we granted leave, if we allowed the appeal, what order do we make that does anything?

MR PAPAS:   Without wanting to appear too base, he did suffer an order of costs against him in the appellate court when he was there properly seeking to review the decision of the single judge and I understand that generally to stand before a Bench of High Court Justices and say he went down on costs is not really going to get me very far but if I was to put to your Honours that it is a very important issue as well.  So if I sought to predicate it - - -

KIRBY J:   It is and the case may well come up on a day where either because the issue is still alive or because for some reason the party moves the Court to expedite the hearing and to deal with it when it is a real live issue, then there will be a case that will present the opportunity to make orders that have an effect.

MR PAPAS:   Yes.

KIRBY J:   But here we would make orders that have no effect.

MR PAPAS:   If, in fact, the orders of the Court of Appeal that, in the circumstances, went against him with costs were to be reviewed on that issue alone ‑ ‑ ‑

KIRBY J:   I cannot believe that the Court would lift a matter up simply to disturb cost orders.

MR PAPAS:   I accept that, your Honour.  It certainly was never going to be put on that basis but in terms of the real issue to the applicant in these proceedings, if I stand before your Honours and say he is a man of principle, he is a man who seeks to address a wrong, he is a man who seeks to ventilate what he says was a substantial error of law - in the end I accept that unless it is a point of such gravamen, such moment that your Honours felt that it needed to be tackled, I am struggling.  I accept that and I have been thinking as hard as I can, on the way over the Murray northways rather than the other way, how I could identify a current issue, a current issue that he would benefit from.

KIRBY J:   Have you done so, after all this thinking?

MR PAPAS:   No, I have simply identified the importance of the point, the legitimate nature of the application when he first went before the appellate court, the question of the costs, the fact that he might well have lost an advantage at the time that he perceived but all of those are historical.  In terms of today, he is in custody in Victoria but on another basis.  His bail was revoked during the course of the trial that I appear for him down below and there are many factual issues that I could attend to and advise your Honours of but it is not going to make any difference.  The fact is he is in Victoria facing the trial that he was transferred for.  He has me appearing for him now, funded.

KIRBY J:   That is a good outcome.

MR PAPAS:   It might have had something to do with your Honours ‑ ‑ ‑

KIRBY J:   Both (a) that you are appearing and (b) that it is funded.

MR PAPAS:   It might have had something to do with your Honour’s comments on another occasion in ‑ ‑ ‑

KIRBY J:   Yes, well I think that that is as much help as I can give Mr Frugtniet.

MR PAPAS:   Yes, your Honours.

KIRBY J:   Anything else?

MR PAPAS:   No, your Honours, they are the matters that I have tried to come up with and ‑ ‑ ‑

KIRBY J:   Yes, thank you, very much.  You have put everything that could be put.  The Court does not need your assistance, Ms Latham. 

The point which the applicant seeks to agitate in this application for special leave is no longer of practical effect.  Special leave to appeal is accordingly refused. 

AT 1.09 PM THE MATTER WAS CONCLUDED