Henke, Ex parte - Re O'Loughlin & Ors

[2002] HCATrans 101

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M112 of 2001

In the matter of -

An application for a Writ of Mandamus and Prohibition against THE HONOURABLE MAURICE FRANCIS O’LOUGHLIN, A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

First Respondent

FINLAYSONS (A FIRM), BRUCE JAMES CARTER AND MARTIN DAVID LEWIS

Second Respondents

Ex parte –

IAN SIDNEY HENKE

Applicant/Prosecutor

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 26 MARCH 2002, AT 10.18 AM

Copyright in the High Court of Australia

MR D.C. FITZGIBBON:   Your Honour, I appear for the prosecutor.  (instructed by Noel Waters Pty Ltd)

HER HONOUR:   There is a single prosecutor?

MR FITZGIBBON:   Yes.

HER HONOUR:   Very well.

MR FITZGIBBON:   In terms of the writ.

HER HONOUR:   Sorry?

MR FITZGIBBON:   In terms of the actual writ filed, yes.

HER HONOUR:   Yes.  Well, he is the only prosecutor.  Before you proceed, I should inform you that the Deputy Registrar certifies that she has been informed by the Australian Government Solicitor that the first respondent will submit to any order of the Court in this matter – will not appear and submits to any order of the Court and she also certifies that she has been informed by Finlaysons, the solicitor for the second respondents, that they do not seek to be heard and will not appear at the hearing of this application.

MR FITZGIBBON:   Thank you, your Honour.  I am grateful for that, your Honour.

HER HONOUR:   Now, what is your standing?

MR FITZGIBBON:   My standing, your Honour, is I am counsel ‑ ‑ ‑

HER HONOUR:   No, what is the prosecutor’s standing in this?

MR FITZGIBBON:   I take the view that ‑ ‑ ‑

HER HONOUR:   No, tell me what the standing is.

MR FITZGIBBON:   His standing is he is one of the named parties ‑ ‑ ‑

HER HONOUR:   To what?

MR FITZGIBBON:   To the summons.

HER HONOUR:   Which has not been filed?

MR FITZGIBBON:   No, and that was the first matter I was going to raise, your Honour.  I must apologise.  I thought it was in the papers and I reread the papers last night and I panicked because I found it was not there.  Now, I have sought urgently from my solicitors to get a copy remitted up here by fax.

HER HONOUR:   Well, I am not too sure that that is good enough, is it?

MR FITZGIBBON:   No.

HER HONOUR:   Because when I read through the material – could you just tell me which of the draft writs are you proceeding on?  There are two filed, both with the same number.

MR FITZGIBBON:   Yes.

HER HONOUR:   One names Finlaysons as the second respondent, although I do not see on what basis, and the other does not.

MR FITZGIBBON:   No.  I believe correctly, your Honour, it is more a matter of the second writ that has been filed ‑ ‑ ‑

HER HONOUR:   Well, I do not know which is that.

MR FITZGIBBON:   ‑ ‑ ‑ that does not, in fact, name Finlaysons.

HER HONOUR:   Okay.  Now, wait a minute.  The second writ was filed on 20 March 2002.

MR FITZGIBBON:   That is correct, your Honour, yes.

HER HONOUR:   Yes.  Well, I can ignore the earlier one?

MR FITZGIBBON:   Yes.

HER HONOUR:   Now, Mr Fitzgibbon, I saw very little affidavit material to support any of the contentions in paragraphs 1, 2, 3, 4 or 5 in the second writ.

MR FITZGIBBON:   Yes, your Honour.  I hear what your Honour says.  May I put it on this basis, and bearing in mind what your Honour has already – I listened with great care to what your Honour said in the previous matter.  I am under instructions, your Honour, to put to your Honour the alternative, if that is of assistance.

HER HONOUR:   And what is the alternative?

MR FITZGIBBON:   The alternative is that this matter be remitted back to the Full Court of the Federal Court for hearing because it seems to me that the very objections your Honour raised with Mr Bryant are at least superficially present in this case and there would be questions ‑ ‑ ‑

HER HONOUR:   Well, I would want to see the papers in order before that.

MR FITZGIBBON:   Yes.

HER HONOUR:   As the papers now stand, I have no reason to think that Mr Henke is a party affected.  I see nothing to support and therefore would not contemplate issuing anything which says an improper exercise of powers.  I see nothing that could possibly support and therefore would not be minded to issue any writ which said were an abuse of power in the second paragraph.  I see absolutely nothing to support the proposition that Justice Nicholson had full knowledge and I do not see its relevance – I am sorry, no, that is the knowledge of Justice O’Loughlin.

MR FITZGIBBON:   Yes.

HER HONOUR:   I see nothing – well, they are the problems that I see in it.  I also find paragraphs in one of the affidavits as somewhat verging on the scandalous if they are not supported by evidence.  I see in the affidavit:

That the Respondent –

who I take it to be the first respondent –

has failed and refused to perform that duty in respect of the Prosecutor by actual and/or constructive refusal to obey legislation –

that is a very serious matter to put in an affidavit when the papers are such as they are.

MR FITZGIBBON:   Yes.

HER HONOUR:   And refused “to obey the requirements . . . of the Rules”, another serious matter.  Not just in breach of the Rules or misconstrued the Rules.  Paragraph 5 “acted with partiality”, nothing there to support that.  Just a bare and, I would have thought, large and, in the absence of some evidence, not a proper thing to put in an affidavit.  Are you responsible for these affidavits?

MR FITZGIBBON:   Not entirely, no.  They have faxed copies and ‑ ‑ ‑

HER HONOUR:   Now, Mr Fitzgibbon, I would be prepared to adjourn this matter to enable you to put the papers in order.

MR FITZGIBBON:   Thank you, your Honour.

HER HONOUR:   In that I would think you might seek to withdraw that affidavit and make one that is somewhat less ‑ ‑ ‑

MR FITZGIBBON:   In much less ‑ ‑ ‑

HER HONOUR:   Yes, offensive terms.

MR FITZGIBBON:   Yes, thank you.

HER HONOUR:   Does that appeal to you?

MR FITZGIBBON:   That does appeal to me, your Honour.  Certainly, there is no – when I – no, I will not say what I was going to say.

HER HONOUR:   Yes.  Now, I can deal with it later in the week.

MR FITZGIBBON:   Yes, if your Honour would consider that.

HER HONOUR:   I can deal with it on Thursday morning at 9.30.  Is that too soon?

MR FITZGIBBON:   It is just slightly, your Honour, because I know who the burden of work will fall upon.

HER HONOUR:   Yes.  Well, then otherwise I do not see why we should sit on Good Friday for it, do you?

MR FITZGIBBON:   No, that is right.

HER HONOUR:   I could deal with it next Wednesday.

MR FITZGIBBON:   Yes, your Honour, I think that that is certainly very suitable to myself, if your Honour would kindly do that.

HER HONOUR:   Yes.  Well, I will adjourn it, if you like, until Wednesday, 3 April at 9.30 am.

MR FITZGIBBON:   Thank you, your Honour.

HER HONOUR:   And I trust you will look at those documents with some care.

MR FITZGIBBON:   I shall.  My heavy hand shall fall upon it, your Honour, in appropriate places.

HER HONOUR:   Very well.

MR FITZGIBBON:   There is a basis, your Honour, for what has been said but it is not in the form that ‑ ‑ ‑

HER HONOUR:   Yes.  Well, it does not appear in the attachments.  Very well, the Court will adjourn until 9.30 am on Wednesday, 3 April.

MR FITZGIBBON:   Thank you, your Honour.

AT 10.28 AM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 3 APRIL 2002