Harty & Ors v Schachter

[1989] HCATrans 283

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M28 of 1989

B e t w e e n -

JACK HENRY HARTY, MAX CASEN,

JOSEPH CHARLES, JOHN RAYMOND MORROW,

MICHAEL PETER TAUSSIG, JOHN McDONALD

SPIERS McKELL, MICHAEL JOHN CREEL}fAN,

CHARLES BELA KOVESS, GEORGE PETER SZABO

and DEBRA MARIE PARSONS Practising as

Barristers and Solicitors of BARKER

GOSLING (a firm)

Applicants

and

MAX BERNARD SCHACHTER

Respondent

APplication for removal

Harty

MASON CJ DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 NOVEMBER 1989, AT 9. 34 AM

Copyright in the High Court of Australia

MlT 1/1/PLC 1 17/11/89

MR A.R. CASTAN, QC:  May it please the Court, I appear

with my learned friend, MR G.T. PAGONE, for the

applicants. (instructed by Messrs Barker Gosling)

MR B. PAUL:  May it please the Court, I appear on behalf

of the respondent. (instructed by Messrs Kings)

MR CASTAN:  May it please the Court, this motion for removal

pursuant to section 40 of the JUDICIARY ACT has

been issued and brought on before this honourable

Court in relation to the case stated which is

before the Full Family Court because of some
considerable uncertainty as to whether, if that
were not done, the situation may eventuate that
the matter may be incapable of being taken

further upon the ,matter being dealt with by the

Full Family Court.

MASON CJ: Yes, perhaps those seeking to have the case

stated should have acted with a little more

caution.

MR CASTAN:  When Your Honour expresses the view of "caution",

as the matter developed, it was His Honour

Mr Justice Fogarty, I think, who took the view

that the questions that were raised - the matters raised on the notice disputing costs were matters such that a case stated was appropriate in order

to determine those - - -

MASON CJ: Yes, but nobody seems to have given attention

at that time to the difficulties that would arise

further down the track.

MR CASTAN: With respect, Your Honour, I think those

difficulties were contemplated. In fact,

consideration was given to that very problem

and the - - -

MASON CJ: Well, why was the case stated?
MR CASTAN:	The matter was raised and a concern was

expressed as to which way it should go and

His Honour Mr Justice Fogarty took the view

that a case stated was appropriate and that

those matters would have to be raised. I should

also add, Your Honour, that the Full Court of the

Family Court has also expressed a concern that

it seeks indications and it is for that reason

that the possibility of an additional question

has been raised, not at our instigation but as

a result of indications given by the Full Court
of the Family Court itself seeking to bring
before this Court the nature of the problem and

asking for guidance on that very question.

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Harty

MASON CJ: Yes. Now, Mr Castan, of course, the Court has

exercised jurisdiction in relation to answers

given to a stated case.- - -

MR CASTAN:  Yes, Your Honour, we are aware of that, in

SMITH.

MASON CJ: - - - in circumstances where the order has not

been taken out. But the general question was

agitated in a case called O'TOOLE V CHARLES DAVID

PTY LTD which is coming on for hearing before the

Full Court on 1 May next year. Now, it is

anticipated that the matter will be fully argued

and debated in that case. An order for removal

has been made and the effect of the order for

of the Court in circumstances where answers have	removal will be debated as will the jurisdiction
been given to the questions in the stated case.

MR CASTAN:  Yes. We were not familiar with the fact that

that matter was in train.

MASON CJ: No.

MR CASTAN:  And I should also indicate by way of background,

although it does not affect what the Court does,

that we did undertake, before going down this

course, some inquiries of the Registry about the

problems that were posed in this sort of

situation as well as undertaking, obviously, our

own researches and making our own decisions and

we take responsibility for those decisions but

we did seek to obtain as full a picture as we

could of what - - -

MASON CJ:  But would not the sensible course be to stand

this application over until the matter of

O'TOOLE V DAVID comes on for hearing before the

Court?

MR CASTAN:  That would seem to be the sensible course.

The only consideration that my learned junior

has wisely pointed out, Your Honour, is that

on one view, if. the view expressed in FISHER

were to be upheld we, of course, would then have

to come again and make this application again

and that might be, again, a further and perhaps

unnecessary expenditure of costs and time and

another alternative might be for this application

to be dealt with together with the matter that

Your Honour has referred to.

MASON CJ: No, that would be quite unsuitable because the

substantial questions in this case are entirely

different from the substantial questions in

O'TOOLE V DAVID.

MlTl/3/PLC	3	17/11/89
Harty

MR CASTAN:  Yes. And I take it from Your Honour's expression

of that view that Your Honour would regard it as
unacceptable to deal with those substantial
questions and the other substantial questions

successively, perhaps, in both matters?

MASON CJ:  Yes. I mean, the cases are quite unrelated

except for this jurisdictional question.

MR CASTAN:  Yes. Well, perhaps, no doubt, Your Honours

would want to hear from my learned friend,

Mr Paul, who has a particular concern about

questions of cost as do we and it is that

particular issue, perhaps, that is the

only reason why we would demur from - - -

MASON CJ:  I had that in mind and that is why adjourning

the matter seemed to me perhaps the best course

in terms of, as it were, keeping costs to a

minimum.

MR CASTAN:  Yes, subject only to the fact that, depending

on the course that is then taken, we might find

that costs are again expended on coming back to

resume, so to speak, this application.

MASON CJ:  I am sure members of the profession will treat

the matter responsibly as they always do when

it comes to matters of cost.

MR CASTAN:  I can assure Your Honour that will happen.

If Your Honour pleases.

MASON CJ: Yes, Mr Paul, what do you say about the

suggestion of an adjournment?

MR PAUL: If it please Your Honour. If I may, with respect,

adopt what Your Honour opened up with in relation

to what happened before His Honour Mr Justice Fogarty.

The various options open to the applicant were	canvassed between His Honour and those appearing	for the applicant and to suggest that His Honour
Mr Justice Fogarty was the prime mover of the

· case stated is not correct.

MASON CJ: No, it sounds unlikely but, Mr Paul, is it not

bett_er to concentrate on the future rather than

the past? What is your attitude to the adjournment?

MR PAUL:	My position is set out in the affidavit.	We are
mainly concerned with the issue of costs.

MASON CJ: Yes. That being so, is not an adjournment the

best course?

MR PAUL:	If Your Honour considers it that way. My client
wants finality, Your Honour, and that is what he
is interested in primarily.

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Harty

MASON CJ: Well, that is not unusual for clients to want

finality.

MR PAUL: Well, particularly in this case, Your Honour.

MASON CJ: Yes, I can understand that.

MR PAUL:	And if, in fact, Your Honour is disposed to
client's costs be paid, Your Honour. adjourn the matter, we would ask that our
MASON CJ:	Very well, Mr Paul.

MR PAUL: If Your Honour pleases.

MASON CJ:  Do you want to say anything in response,

Mr Castan?

MR CASTAN: Yes, Your Honour, my learned friend's costs

should be in no different position than our

clients' costs.

MASON CJ: Well, you need not be concerned about costs.

MR CASTAN: There is no other matter, Your Honour.

MASON CJ:  Very well. The matter will be stood over

generally with liberty to either party to restore

to the list on seven days notice. Costs will be

reserved.

MR PAUL: If Your Honours please.

AT 9.43 AM THE MATTER WAS ADJOURNED SINE DIE

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Harty