Harris v Caladine

[1990] HCATrans 157

_._

-!J,,~USTRALIA,1J!:-

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S40 of 1990

B e t w e e n -

DONNA THERESE HARRIS

Applicant

and

ALAN CALADINE

Respondent

and

ATTORNEY-GENERAL OF THE

COMMONWEALTH

Intervener

Application for special
leave to appeal

MASON CJ TOOHEY J MCHUGH J

Harris 1 6/8/90

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 6 AUGUST 1990, AT 12.46 PM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC: If the Court pleases, I appear with

my learned friend, MR R.G.L. DAVIES, for the

applicant. (instructed by Robin & Co.)

MR s. MITCHELL:  I appear for the respondent, if the Court

pleases. (instructed by Coleman & Greig)

MASON cJ·: · _Now, I understand, Mr Bennett, this application

· is not opposed. You do not wish to make any

submissions?

MR MITCHELL: That is so, Your Honour.

MR BENNETT:	I do not know if that shortens it, Your Honour.
MASON CJ: Well, I think it does, Mr Bennett.	I think in

those circumstances, having regard to the

importance of the point, it probably calls for a

grant of special leave. Is there anything that you

should draw to our attention in relation to the

matter?

MR BENNETT: 

The only matter Your Honours may wish to - the

only matter I should disclose to you is the
possible issue which was not raised below in

relation to Order 24 rule (l)(viii) which is the rule which says that one cannot give evidence in

any court on any occasion of anything that takes

place before a deputy registrar or registrar. And

there is then a problem as to- how one runs an

application for review where the issue is that the

consent was vitiated by something said by the

registrar. But apart from that, which I felt ought

to be disclosed to the Court, there is nothing I

want to say.

MASON CJ: Yes, but that does not seem to be any reason why

we should refused to grant special leave.

MR BENNETT:	No.
TOOHEY J: Could I just ask you, Mr Bennett, would all the

grounds that are envisaged in the notice of

appeal remain grounds to be argued?

MR BENNETT:  I think most of them can be compressed into one

ground. There is a little bit of repetition in the

notice of appeal. Grounds (a) and (b) really are

the same, and grounds ( c) , ( d) , ( e) , ( f) , ( g) and

(h) really involve the same overall issue although

different aspects of it. There are only two

issues. There is the issue as to the validity of

the delegation of power to a registrar, and the

question of whether Reg v Davison remains good law

as a general proposition in the face of the dicta

in the HCF case; or whether it should be confined as was suggested by the Chief Justice in that case

Harris 6/8/90

to a decision on the particular status of

bankruptcy registrars. That is the principal

issue. And I suppose an aspect of that is what is

an exercise of judicial power.

And then the secondary question is - which

only arises if I fail on the first ground - what is
the content of an appeal from the registrar to the

court - where there is a consent order and that

consent is no longer forthcoming and a party wishes

to contend that the consent was vitiated by

something said.

MASON CJ: There will be a grant of special leave,

Mr Bennett.

AT 12.50 PM THE MATTER WAS ADJOURNED SINE DIE

Harris 6/8/90