Gallo v The Honourable Justice Dawson

[1990] HCATrans 42

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M59 of 1989

B e t w e e n -

KATHLEEN GALLO

Applicant/Plaintiff

and

THE HONOURABLE JUSTICE DAWSON

Respondent/Defendant

Application for an extension

of time

TOOHEY J

(In Chambers)

Gallo(3)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 MARCH 1990, AT 8.54 AM

Copyright in the High Court of Australia

MlTl/1/PLC 1 9/3/90

MR C. MAXWELL:  May it please the Court, I appear for the

defendant, the respondent to the summons.

(instructed by the Australian Government Solicitor)

HIS HONOUR:  Can you tell me anything about Mrs Gallo's

non-appearance?

MR MAXWELL:  Your Honour, my information via Court officials

is that Mrs Gallo was in contact with the Court

yesterday afternoon.	She confirmed her intention
to attend.	She was given the address and the

time and she was expected to be here. That is the

extent of my information. There has not, as I

understand it, been any communication from her

this morning but her arrival was expected. My

instructions are, in the circumstances of her
non-appearance, to seek to have the summons

struck out. It is, of course, a matter for the

Court, in the circumstances I have just outlined,

to decide whether that is the proper course, but

those are my instructions. The defendant has

responded to the summons and is ready to deal

with it. The onus is on the applicant in these

circumstances to be here to advance argument in

support of the summons.

HIS HONOUR:  What are the consequences of an order striking

out the application?	I suppose it can be
reinstated.

MR MAXWELL:  I would have thought so, Your Honour, yes. It

would not be an adjudication on the merits and she would be at liberty to reapply, the matter

having been struck out on this basis.

HIS HONOUR:  Yes. I will just check. Mr Jones, has there

been some paging for Mrs Gallo? Perhaps she should

be called, would you mind, please, and would you

extend that also to the foyer of the building,

please?

COURT CRIER:

Mrs Gallo is nowhere in the court precincts,

Your Honour.

HIS HONOUR:  Yes, thank you very much. Mr Maxwell, in the

circumstances, I propose to accede to the

application. It is now a minute or two off

9 o'clock. The matter was listed for 8.45, and

from what you tell me Mrs Gallo was aware of the

time and place of the hearing. She has now been

paged and to strike out the application seems to

me the appropriate course rather than to stand it

down. It is an application for an extension of

time, not an application which seeks some final

determination of the matter.

So, the application, by summons dated 16 February

1990 will be struck out.

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Gallo(3)

MR MAXWELL:  And I seek the defendant's costs of the day,

if Your Honour pleases.

HIS HONOUR:  What exactly does that mean in these circumstances,

Mr Maxwell?

MR MAXWELL:  It would be the costs attributable to the

appearance

HIS HONOUR:  To the appearance, as opposed to any

substantive preparation in the argument of the

matter.

MR MAXWELL: That is so, Your Honour, yes. It would be

assumed that although there necessarily will be

some repetition of that next time, if there is a

next time, I refer only to the cost of today's

appearance.

HIS HONOUR:  Very well. There will be an order that the

plaintiff/applicant pay the defendant's costs of

today's appearance.

MR MAXWELL: If the Court pleases.

AT 9.00 AM THE MATTER WAS ADJOURNED SINE DIE

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Gallo(3)