Hawkins v Abetz

[2010] HCATrans 281

[2010] HCATrans 281

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
  Hobart  No H1 of 2010

B e t w e e n -

JOHN BERNARD HAWKINS

Petitioner

and

ERICH ABETZ

Respondent

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 22 OCTOBER 2010, AT 9.30 AM

Copyright in the High Court of Australia

MR J.R. SACKAR, QC:   If the Court pleases, I appear with MR D.F.C. THOMAS for the petitioner.  (instructed by Will Edwards Lawyers)

MR A.L. TOKLEY:   If the Court pleases, I appear for the respondent.  (instructed by Abetz Curtis)

HIS HONOUR:   What is the position, Mr Sackar?

MR SACKAR:   The position is this, your Honour, that a letter was sent to the Court on 21 October indicating that as a result of certain documentary material provided on 18 October my client wished to withdraw or advise the Court that he proposes to withdraw the petition.  The material which was provided was and is on its face an authentic document indicating that as at March at least of 2010 Senator Abetz had renounced his German citizenship and on the basis of my and Mr Thomas’ consideration of that document, we took the view immediately that the petition no longer had any prospects of success and advice has been given accordingly.

Under rule 32.05.2 of the rules, the petitioner must give 14 days notice of intention to apply for leave to withdraw and so my client proposes to perform the advertisements that need to be placed in State, Territory, et cetera, press and as a result of that, would then seek leave of the Court under 32.05.3 to withdraw the petition.  So that is what Mr Hawkins proposes to do.  On that basis, we would submit, your Honour, that at that point we would then seek leave.  That could either be done in a hearing of this Court – for our part at least, we would be content, if the Court were otherwise minded, for the leave application to be dealt with on the papers and if there is an outstanding ‑ ‑ ‑

HIS HONOUR:   Yes.  There is some difficulty about doing that.  This is a public process in which others can apply for leave to be substituted and what I am presently minded to do is to fix Monday, 15 November at 9.30.  I would sit in Melbourne but if needs be, it would be appropriate to establish a video link, but I would appoint Monday, 15 November 2010 at 9.30 as the time at which I would hear the application for leave to withdraw.

MR SACKAR:   If the Court pleases.

HIS HONOUR:   That would entail, I think, Mr Sackar, that the advertisement published in accordance with rule 32.05.2 should state in terms that the petitioner gives notice of intention to apply on Monday, 15 November 2010 at 9.30 before a single Justice sitting in Melbourne for leave to withdraw his petition and the petitioner should do that by advertisement in a newspaper circulating in the State of Tasmania.  Now, it

occurs to me, and I would be glad of submissions from the parties, that a possible additional matter that may or may not be necessary or desirable in the advertisement is to record the terms of rule 32.05.3.

I have in mind that in a company petition, which is the nearest analogy I can draw on, it is commonplace for the rules and, I think, the advertisement to make plain that those who desire to be substituted can come along. Now, rather than put the petitioner in the position where he is actively inviting people to pick up the petition which he desires to abandon, it occurred to me that a possible course – as I say about which I wish to hear fro the parties – is to direct that the petitioner include within the advertisement published in accordance with what would be the first paragraph of the order the following, namely, “Rule 32.05.3 of the High Court Rules 2004 provides that”, and then set out the text of the rule, but, as I say, I would be glad of any submission that first you and later Mr Tokley would wish to make about that proposal.

MR SACKAR:   As far as we are concerned, your Honour, we would adopt it because this needs to be closed off, clearly, and it would be undesirable for there to be any suggestion of some vestige of this point remaining and we would adopt that and be prepared to put it into the advertisement.

HIS HONOUR:   Yes.  Other than to direct you to give notice of intention and to direct that the advertisement contain that additional requirement, is there anything else, other than perhaps to reserve costs, that should be done from your end of the matter?

MR SACKAR:   No, your Honour.

HIS HONOUR:   Thank you, Mr Sackar.  Now, Mr Tokley, what do you wish to say?

MR TOKLEY: Thank you, your Honour. The withdrawal of the petition is not opposed obviously. With respect to the point that your Honour raised in relation to rule 32.05.3, I do not think we can oppose that course of action. I think, for the reasons given by Mr Sackar, it is a sensible approach to take to the matter, so I think we would have to go along with it. Obviously there is a risk for us that someone will come out of the woodwork, so to speak, but so be it. This is a public matter.

HIS HONOUR:   Of course, but we have to get to a conclusion on this and it seemed to me that that was a way of drawing to attention of anyone who was interested that they had the right to apply and then what befell that application would depend, of course, entirely on the material then available.

MR TOKLEY:   Yes, your Honour.  I do not oppose that course of action either.  Your Honour, there is one small matter, if I may raise it with your Honour.

HIS HONOUR:   Of course.

MR TOKLEY:   It is simply that the respondent seeks to amend his notice of appearance.  His Christian name is Eric without an “H”.  It is not opposed by my learned friends and what I would propose is that we file an amended appearance in the Court, with your Honour’s leave, to correct the Christian name from Erich with an “H” to Eric without an “H”.

HIS HONOUR:   That would entail, I think, amending the title of the proceeding as well, would it not?

MR TOKLEY:   Yes, your Honour.  I do not think that is opposed by my learned friends.

HIS HONOUR:   One always gets very edgy about making any amendment to an electoral petition because the time is so short.

MR TOKLEY:   Yes, your Honour.

HIS HONOUR:   If you wish me to go down this path, of course I will, but forgive me if I resort to the vernacular, Mr Tokley, are we talking sheep stations here?

MR TOKLEY:   No, your Honour.  Can I take that on board, your Honour, please?

HIS HONOUR:   Yes.  If you persist in it, of course I will consider it, but, as I say, amendment of petitions always troubles me.

MR TOKLEY:   Point taken, your Honour.  Indeed, your Honour.  The only other matter was, of course, the question of costs being reserved until the next occasion.  Thank you, your Honour.

HIS HONOUR:   Yes.  Now, what I have not provided for in the direction, and I had not deliberately provided for but I simply draw to the attention of parties, was I had not provided that anyone who did want to come along had to give notice to anyone else.  It seemed to me there was likely some difficulty about giving such a direction, could not bind them to come along and give notice, and I therefore have said nothing in the order.

MR TOKLEY:   Yes, your Honour.

HIS HONOUR:   I draw it to the attention of the parties.  If either party wanted to say anything about that, then do.  No signs from your end?

MR TOKLEY:   Thank you, your Honour, I have nothing to say from our end, your Honour.  Yes, thank you.

HIS HONOUR:   Mr Sackar?

MR SACKAR:   Nothing further.  The only thing that we should formally seek your Honour’s leave to do is to file a short written submission and if need be, annexing an affidavit, obviously annexing the advertisement and matters of that sort.

HIS HONOUR:   Yes, of course you should.  I do not think you need leave to file the affidavit.

MR SACKAR:   No.

HIS HONOUR:   To the extent to which you need leave to file the submission, you have that leave, Mr Sackar.

MR SACKAR:   Thank you, your Honour, and we would include, just for our learned friend’s benefit, as well in that any submission we wish to make on costs.

HIS HONOUR:   Yes, of course. 

MR SACKAR:   Thank you.

HIS HONOUR:   I will direct as follows:

1. Direct that on or before 30 October 2010 the petitioner give notice of intention to apply on Monday, 15 November 2010 at 9.30 am before a single Justice in Melbourne for leave to withdraw his petition by advertisement in a newspaper circulating in the State of Tasmania.

1. Direct that the petitioner include within the advertisement published in accordance with paragraph 1 of this order the following, namely:

Rule 32.05.3 of the High Court Rules 2004 provides that:

At the hearing of an application for leave to withdraw a petition the Court or a Justice may allow any other person who is competent to file a petition on the grounds alleged in the petition to be substituted for the petitioner and the proceedings upon the petition shall be continued as if the person substituted had been the original petitioner.

1. Costs are reserved.

Do counsel need to be heard on the form or content of those directions?

MR SACKAR:   No, your Honour.

MR TOKLEY:   No, your Honour.

HIS HONOUR:   No.  Very well.  There will be directions in those terms and I will adjourn.

AT 9.40 AM THE MATTER WAS CONCLUDED