Henke v Commonwealth Director of Public Prosecutions & Ors

[2009] HCATrans 100

[2009] HCATrans 100

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M14 of 2009

B e t w e e n -

IAN SIDNEY HENKE

Plaintiff

and

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

First Defendant

COMMISSIONER OF AUSTRALIAN FEDERAL POLICE

Second Defendant

RAYMOND HENRY PAUL HOLDER (COMMONWEALTH OFFICIAL)

Third Defendant

Application for order to show cause

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 14 MAY 2009, AT 9.29 AM 

Copyright in the High Court of Australia

MR D.C. FITZGIBBON:   May it please your Honour, I appear for the plaintiff.  (instructed by Waters Timms, Solicitors)

MS W.J. ABRAHAM, QC:   May it please the Court, I appear for the first defendant.  (instructed by Commonwealth Director of Public Prosecutions (Brisbane Office))

MR S.P. DONAGHUE:   May it please the Court, I appear for the second and third defendants.  (instructed by Australian Government Solicitor)

HER HONOUR:   Thank you very much.

MR FITZGIBBON:   Yes, thank you, your Honour.  Your Honour, I am not absolutely sure on our timing on this.  Do we have a leave application time or just ‑ ‑ ‑

HER HONOUR:   Well, there is a summons which is returnable today and you would have read, I hope, as I have done, written submissions from all the defendants.

MR FITZGIBBON:   I have read that very carefully, yes.

HER HONOUR:   In fact, you yourself have put in two documents being written submissions, one of which arrived yesterday.  You can assume I have certainly read all of the material.

MR FITZGIBBON:   Thank you, your Honour, that is most helpful.  Your Honour, I would make this apology, that when I was in Brisbane on Friday on this matter, Mr Kent who appeared and is instructed up there by the Director of Public Prosecutions, both he and I looked at that document – I received it that morning by fax – and we assumed we had merely a directions hearing, but on Monday I had my client make inquiries at the Registry and I was assured it was a hearing.

HER HONOUR:   Yes.

MR FITZGIBBON:   I was, unfortunately, in Admiralty on Tuesday, in Sydney, and I took the first plane down I could and hence the lateness of that document and I apologise for that.

HER HONOUR:   Yes, very well.  You are not suggesting you are not ready to proceed, you are just apologising for the lateness of the document.

MR FITZGIBBON:   No, it is just the lateness of the document.

HER HONOUR:   Yes, very well.  Thank you for that.

MR FITZGIBBON:   I have examined it carefully and ‑ ‑ ‑

HER HONOUR: The new points seem to be section 117 of the Constitution, otherwise, so far as I understood it, it was an iteration of what had been said before.

MR FITZGIBBON: Yes, that is correct. It is and it revolves round section 117 and, indeed, I could go into much argument to the background for that, but our position quite simply, your Honour, is set out in that document, as I say, that was filed yesterday.

HER HONOUR:   Yes, I have read that.

MR FITZGIBBON:   It is that conflict between 79, your Honour, and 80 of the Judiciary Act and of the position that we say and quite clearly there have been changes, particularly in the Supreme Court Act (Qld) but in other Acts as well and, in my submission, and I could, in fact, demonstrate that on the actual documents themselves, but rather than take your Honour tediously through documents like that, our position is really very clear.

Our position is that, whereas in the Supreme Court Act 1995 and which was a restatement of the Supreme Court Act 1991, 199 through to 202, in fact, were extant provisions and then what occurred, quite simply – and it took me a long time to get my head round it – but essentially what happened was, they were moved under what I will call a relocation – I will call it a doctrine of Queensland - I am going to get myself into difficulties, but essentially that is what it is referred to as in the documents that, in fact, are contained in the reports.  Those are actual documents that were given to committee members in Queensland and they refer to that as relocation and by relocation ‑ ‑ ‑

HER HONOUR:   Do you mean in extrinsic materials it is referred to that way?

MR FITZGIBBON:   Yes.

HER HONOUR:   Yes, I see.

MR FITZGIBBON:   With your Honour’s leave, and had I had time, I would have indicated and attached it to affidavits.  It just was not physically possible, but I do have the actual copies of documents.  I can take your Honour very quickly through that and your Honour will realise the mechanics of how 199 through to 202 was, in fact, taken out of the Supreme Court Act and, indeed, by relocation put into a schedule and then by a method of reprinting of Acts – and that was under the Reprints Act 1992 – then, in fact, when the next reprint comes out those sections are omitted from the Supreme Court Act. 

HER HONOUR:   What follows from that so far as your case is concerned?

MR FITZGIBBON:   It is critical to the argument that, in fact, by movement Queensland has gone to a completely statutory base and certainly in relation to common law.  If your Honour pleases, I would seek to, in fact, indicate – and if I might tender that to the Court, it would make the mechanics of it much more apparent.

HER HONOUR:   Do you have copies for your learned friends?

MR FITZGIBBON:   I have just, in fact, handed copies to my learned friends, your Honour.

HER HONOUR:   Thank you.

MR FITZGIBBON:   One of the documents at the back is a document taken out of the Consolidation of the Queensland Constitution:  Final Report and that is a comment by the Parliamentary Committee.

HER HONOUR:   What is that headed up?

MR FITZGIBBON:   They say, your Honour, at about point 3 ‑ ‑ ‑

HER HONOUR:   Which page are you on now?

MR FITZGIBBON:   In fact, your Honour, it is Part III, Notes to the Bill at page 13.

HER HONOUR:   Yes, I have that.

MR FITZGIBBON:   Yes, your Honour.  At approximately point 3 the committee – these are comments, of course, but nevertheless they are attached to the report, and I do have the original report here if anyone wishes to sight it.  It is referring, of course, to section 47(2) and 52, but the notation by the committee confirms, in my submission:

The committee notes however that when section 52 was originally drafted criminal offences were common law offences.  Today criminal offences in Queensland are declared by statute.  Therefore, the committee has kept the references to ‘Act’ in both subclauses of clause 47.

HER HONOUR:   But there is nothing exceptional, is there, in codifying offences in statutes?  It has been done before.

MR FITZGIBBON:   My understanding is that there has been a codification as such and, indeed, at short notice I have quoted out of Butterworths second edition.  I note that the Australian Bureau of Statistics in the Review of Queensland 2003 also claims that Queensland is a codified State, has a Criminal Code and criminal laws mainly based on legislation.  That seems, your Honour – and I am open to contradiction on that – but, in fact, that is borne out by the process that eventually was undertaken.

Now, what we are dealing with here, in my submission, is this.  As I have said before, section 79 of the Judiciary Act and section 80 of the Judiciary Act of course are critical to the issues, in my submission.  Your Honour will not need reminding but, nevertheless, I believe I should point out, 79 of course reads:

The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

The position of section 80, of course, is one that is critical, in my submission:

So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory ‑ ‑ ‑

HER HONOUR:   That is the critical bit, is it not, for your purposes, as modified by statute law in force in the State of Queensland?

MR FITZGIBBON: Yes, that is right. That is where the argument comes in, your Honour. To what extent may they modify and yet take away common law right? That is the nub of the argument and, of course, that then goes, we say, over to section 117. Now, your Honour will notice that I have selected a number of areas. They are not exclusive, but included on the first page I include the position with legal professional privilege, hearsay evidence, admission of evidence relating to deceased persons and people who are not before the court for varying reasons.

There is a charge, your Honour, which charges six individuals, one of whom is my client, one of whom is Mr Huston and there is a third one who came into Australia and was duly apprehended and that, of course, is Mr Fox.  Now, in the particulars supplied by my friend from the Brisbane Office of the DPP, they say that between 1 July 1999, 23 May 2001 – very specific dates – Ian Sidney Henke, Brian Fox, Robin David Huston – I think that his spelling of his name is slightly different, but Clarence Marae, Philip Northam and Lance Stewart Miller are also charged as – no, they cannot charge them.  Three have been charged.  The first three have been charged, your Honour, but unfortunately after five years battling cancer Mr Miller died.

HER HONOUR:   Yes, I saw that in the papers.

MR FITZGIBBON:   I visited him just a few days before that.  Mr Northam is somewhere overseas.  He may be in Vanuatu, I do not know.  I will stop there.  I think he has reasons why he does not want to come back here.  Mr Marae, your Honour, is a citizen of Vanuatu and, as I understand the position, he is not subject to – there was not an extradition treaty available at that time in relation to Vanuatu.  The position could have changed since.  So, why I have put those matters there, your Honour, is most important.  With legal professional privilege there is a decided difference between the Evidence Act (Qld) and the Evidence Act 1995 (Cth) and those States, your Honour, who have come within that under the Uniform Evidence Act.  There is a very decided difference on legal professional privilege. 

Secondly, in relation to hearsay evidence – and this becomes, in my submission, critical in this case, there are a considerable number of tapes taken of many conversations, particularly with Mr Miller, and I have good reason to believe that I am referred to in some of them as well, but I have no difficulty with that.  What I do have a difficulty with is the Evidence Act (Qld) and the admission of evidence like that.

Now, in short, your Honour, the Evidence Act (Qld) does not, as far as I able to ascertain and, in fact, I have checked it through with the Queensland Law Reform Commission review of the Evidence Act in 2005, evidence taken, say, by the federal police would be readily admissible, much more readily admissible in Queensland than, in fact, in what I will determine as a common law jurisdiction.  Your Honour, the reason is there is a precise provision – I am sorry, your Honour, am I travelling too fast?  I have a habit of that.

HER HONOUR:   No.  Do continue.

MR FITZGIBBON:   Thank you.  Your Honour, sections 65 and 66 of the 1995 Commonwealth Act, but in particular section 66(4) permits when a person is dead, on proof of that, and that will not be any difficulty here, that then brings in a provision that if there has not been the opportunity to cross‑examine and, indeed, what, your Honour – I have been acquainted with the history of this back almost to dot.  My hair has turned grey in the meantime, may I say.  Your Honour, what happened was that, in effect, a warrant was sworn out in Queensland by an acting magistrate and a huge number of searches and other things were done on the basis of that and effectively that, of course, those primary events occurred in 2001, possibly into 2002, in some cases but, in fact, Mr Miller was alive for another five years beyond that.  Nevertheless, no charges were ever laid.

My memory is, and I stand open to correction on this, that I do not believe Lance Miller was even interviewed.  Now, I will stand corrected on that.  So, the position, as I say, in Queensland would permit that evidence very easily to be taken in and that, of course, is why I have also referred to the evidence relating to deceased persons.

May I say this, your Honour, late last night I went through all the evidence that the Crown proposes to adduce and it runs to, I think, 15 or 20 folders I counted last night.  Much of that, in fact, the bulk of that – I would not be exaggerating that when I would say that 95 per cent, and I will be conservative of that, has to do with people other than my client.

Now, it becomes critical, as I say, because, in fact, the bulk of those relate to Mr Miller’s other activities which have nothing at all to do with my client other than they were co‑directors on two entities called ITR and ITRA.  May I say this, your Honour, as well, there is a primary document which the Crown here relies upon and it is a document we called for particulars and on page 7 of those particulars there is a statement to this effect:

Payments of interest on the Athena loans by the former directors of the 13 companies analysed totalled $959,280.54.

I will come back to that –

Of that amount Henke, Miller and Conningham -

that is not Dr Conningham, but in fact his wife –

each received a payment of $145,000 -

and that is what is said is money derived, they say.  Now, that is based, your Honour, on a document that I challenged in the Federal Court hearing in Canberra – and the date was the date my first granddaughter was born – and I challenged the provenance of that document and in that document – and it is an appendage to my client’s affidavit and there was an admission made there that that document  – they did not know where the provenance of that document lay and the whole amount of money is framed that the Crown says my client received and yet there is a completely different account given and verified on oath at the Federal Court hearings that I, in fact, was counsel on in Adelaide and in Melbourne ‑ ‑ ‑

HER HONOUR:   Mr Fitzgibbon, you are now going into matters which are contestable matters in the criminal process.

MR FITZGIBBON:   Yes, I am sorry.  I should not do that.  Your Honour, I simply say that the provenance of documents and other matters like that are so much at issue here.  Now, perhaps, your Honour, if I can move then very quickly to the issue of natural justice.  I have set that out particularly by Professor Parlour.  I have my original copy here if anyone wishes to view it, but, in fact, what it – two of the presumptions, I believe, are important here.  The rules of natural justice, Parliament does not intend to deny my client that, nor does Parliament authorise the use of statutory power and bad faith. 

Now, I use those words “bad faith” quite deliberately because, your Honour, what – I cannot say it was intentional, but certainly by the taking away what I will call the doctrine of relocation.  If it is not bad faith, your Honour, it is very close to it.  Now, your Honour would say to me, well, what is the difference?  Well, here, your Honour, is the difference, in my submission.  If we had Mr Henke tried in Victoria where he has lived for 20‑odd years, then the rules of natural justice would apply, section 80 of the Judiciary Act would apply and those parts of the Uniform Civil Procedure would apply and his position, your Honour, I would suggest, could be very, very different from that of his two alleged co‑offenders, Mr Huston and the gentleman who came back from Vanuatu and then was arrested. That is the real nub of the matter and that is the connection, your Honour, that goes to section 117.

Now, your Honour, I will not weary the Court with Street’s Case or the case in 1994 which I refer to.  I have read it at great length.  I say it fits within that.  Hence, the key to the matter is that what would be admissible in Queensland would not be admissible in any other common law jurisdiction.  I do not know the reasons for the Crown preferring Queensland.  The connection on the evidence that I have read is incredibly tenuous.  Indeed, it is probably worse than that, but I will not go beyond that.

The fact is this, your Honour, and it is set out in my client’s affidavit.  There was no money lost, we say, to the ATO.  They applied to the Supreme Court for the winding-up of a number of companies.  The solicitor who negotiated the settlements I have personally sought his affirmation on that.  He was in court on the first occasion when these matters were called.  So at the end of the day, what is claimed as a scheme, what is claimed as a – when I was first engaged I think the figure was about 11 million.

HER HONOUR:   You are saying no loss to the revenue?

MR FITZGIBBON:   Yes.  It is now down to 2 million.

HER HONOUR:   You are suggesting, are you, you are making a point about there being no loss to the revenue?

MR FITZGIBBON: Yes, your Honour. The short matter is this, that I think we can confine ourselves very much to what has happened in Queensland. Now, I have read the submissions by the first respondent and the fine print way down the bottom, but the history of what happened after Federation has been long overtaken by what has happened in Queensland since, particularly since 2001 and where the Constitution which, despite its assurance within the document itself and a schedule attachment 3, that, in fact, when the Bill was submitted to the electors the vote should be taken in such a manner as the legislature prescribes, it has never happened.

So the events have overtaken that, your Honour, very, very clearly and that is why I say it is a very clear case that comes within 117.  My client has no objection to being tried here in Victoria or New South Wales, if that is ultimately the decision made, but his objection lies in what is, I believe, very carefully set out.  Your Honour, I could go a long way further and a lot longer, but it seems to me that that is the nub of the whole matter.

HER HONOUR:   That being so, they are matters that would relate to, for example, a stay application in the criminal process.

MR FITZGIBBON:   I have given consideration to that.

HER HONOUR:   This Court has said many times that the criminal process should not be fragmented - Iorlano’s Case, Gedeon’s Case.  This is a principle which has been repeated many times in this Court.

MR FITZGIBBON:   Yes, your Honour, I am aware of that and that is why I do not want to – I know barristers are paid by the word, but I am too old for that, in my submission.  The answer is that we have given consideration – my solicitor has very carefully just – if I might just take a moment – very carefully have said you have problems with this and made submissions, nothing happened, nothing came back, but I do believe ‑ ‑ ‑

HER HONOUR:   As I understand it, what is imminent is committal proceedings, so very little substantively has happened to date.

MR FITZGIBBON:   Nothing, and my client has not even pleaded – I am not saying this as – but he has serious health problems, very serious health problems and I, as a friend, I believe I can tell your Honour that from the Bar it is well attested in medical documents.  Apart from, I think, appearing once, I have appeared on his behalf and kindly the court has borne with that.  But it is a step we have not taken but it is a step – I appreciate what your Honour says because it is a position, as I see it – there are serious problems and really serious problems and that needs my undivided attention or, indeed, my researcher’s at a much later time, but I am content – I am in your Honour’s hands and, your Honour, that may be a more appropriate way of dealing with it.  That is why I assumed a directions hearing this morning, but nevertheless, I have prepared as though it were an application ‑ ‑ ‑

HER HONOUR:   Yes.  Thank you for your assistance.

MR FITZGIBBON:   Thank you for your patience, your Honour.

HER HONOUR:   Yes, Ms Abraham.

MS ABRAHAM:   The first defendant maintains its position that clearly these proceedings ought to be dismissed.  There is a fragmentation issue, as your Honour is well alert to.

HER HONOUR:   Yes.

MS ABRAHAM:   Your Honour, can I make this point.  It appears from the submissions this morning, in reality what my friend’s application is a change of venue application which is clearly not a matter for this Court at all and it seems to be based on the fact that, in his submission, at the end of the day, the laws in Queensland are different to the laws elsewhere.  I might add, I do not accept that in relation to some of the aspects here said in relation to the principles of evidence, but leaving that to one side ‑ ‑ ‑

HER HONOUR:   Section 80 of the Judiciary Act in its terms recognises that the common law may be modified by statute.

MS ABRAHAM:   Absolutely.  Section 68, of course, has you picking up the relevant State laws, therefore it is recognised that you are going to have different approaches in difference jurisdictions.

HER HONOUR:   I think toward the end Mr Fitzgibbon accepted that this may indeed be a venue change application or a stay application in some manner or other and there just has not been any opportunity to ventilate those matters to date, I suppose, but that is a matter for the future.

MS ABRAHAM:   That is a matter for the future.  If my friend wants to make an application in the courts in Queensland, that is fine, but, in my submission, these proceedings ought to be dismissed with costs.

HER HONOUR: Do you say anything more in relation to the section 117 of the Constitution point?

MS ABRAHAM:   In my submission, that does not assist my friend in any way.  I am not quite sure, with respect, how that is relevant to what seems to be a change of venue application because, as your Honour quite rightly points out, section 80 and, indeed, 68 recognises that there will be a difference in the laws applied between the States because some States have the Uniform Evidence Act, some States do not.  The consequence, I might add, as a matter of practicality in this case is not as my friend says, and I can give your Honour one instance.

My friend keeps referring to statements of deceased persons.  Your Honour, this is a conspiracy.  Statements in furtherance of a conspiracy are admissible against all conspirators under the Uniform Evidence Act or under common law.  That would be admissible in whatever State one is stalking about, in my submission.  So one does not even have the difference my friend is suggesting but, as I said a little earlier, the system is set up recognising that there will be differences or, rather, may be differences between the various procedures and the various rules applied.

HER HONOUR:   Yes.  Anything further?

MS ABRAHAM:   No, your Honour.

HER HONOUR:   Yes, thank you.  Dr Donaghue.

MR DONAGHUE:   Thank you, your Honour.  I will be quite brief.  Just staring with the procedural position, as we understand it, what the Court is dealing with today is the show cause hearing under Order 25.03 of the Court Rules.  Order 25.03.3 gives this Court a number of options on a hearing of that kind, one of which is simply to dismiss the proceeding.

HER HONOUR:   Under (a).

MR DONAGHUE:   Under (a) and that is what we invite the Court to do with the application today.  We submit that it is appropriate for the Court to do that without needing to enter into the merits of the arguments that are advanced by the plaintiff because to the extent that there is substance, and we do not accept that there is substance in any of those points, but were there to be substance in them, they can, in our submission, be ventilated in the course of the proceeding.

HER HONOUR:   The criminal process.

MR DONAGHUE:   The criminal process.

HER HONOUR:   So back to the fragmentation point.

MR DONAGHUE:   Exactly.  But the fragmentation point is a good point whether or not the points raised have merit.  There is an exception to the fragmentation principle if you have a pure point of law of some importance, but clearly ‑ ‑ ‑

HER HONOUR:   Some exceptional nature.

MR DONAGHUE:   Exactly, and Gedeon was an example and Sankey was another example.

HER HONOUR:   I think Mr Fitzgibbon recognised implicitly that he is conscious of that. 

MR DONAGHUE:   Yes, but what that means, in my submission, is that this proceeding should be brought to an end now and if there are stay applications or other matters ‑ ‑ ‑

HER HONOUR:   They are for the future.

MR DONAGHUE:   For the future in a different place.

HER HONOUR:   In the criminal process.

MR DONAGHUE: Yes, not here. That is right, your Honour. There are, in my submission, only two hinted at suggestions as to why perhaps that cannot be done, why the Queensland court might not be appropriate. There is a suggestion that there is a jurisdictional problem and there is a suggestion that there is a constitutional problem under section 117 and if I can briefly address the Court on both of those.

The suggested jurisdictional problem, as I understand it, relates to the repeal of certain provisions in the Supreme Court Act (Qld). That, in my submission, is to miss the appropriate question. The jurisdiction of the Queensland court is here established as federal jurisdiction but the pathway is section 77(iii) of the Constitution authorising Parliament to invest State courts with jurisdiction, section 68(2) of the Judiciary Act which does invest State courts with that jurisdiction, section 68(1) dealing with the law that applies in that jurisdiction and to the extent that there is a gap not covered by Commonwealth or State statute law, the common law is picked up.

That pathway gives the Queensland court jurisdiction without any need to refer to anything in this Supreme Court Act (Qld) and what the Queensland Parliament does in relation to the Supreme Court is neither here nor there we say in relation to the jurisdictional point. In any event, as this Court has recognised many times, Australia has a national common law, a uniform common law for the country. The fact that Queensland codifies its criminal laws says nothing about whether the common law of evidence can apply and be picked up in a prosecution of a federal offence. It is just a different topic. The codification of Queensland criminal law therefore is neither here nor there in terms of whether the common law can apply. But ultimately the position is that the Judiciary Act governs the situation and the laws of Queensland, such that they are, are applied.

Now, that takes me immediately to the section 117 point. I do not know if your Honour has that with you on the Bench, but it is quoted in my friend’s submissions.

HER HONOUR:   Yes, I have that.

MR DONAGHUE: The point really is the simple point that even in its terms, it is clear that what section 117 prohibits is the imposition of a “disability or discrimination which would not be equally applicable to him”, that is, the resident of the other State, “if he were a subject of the Queen resident in such other State”. So the question is, is Mr Henke’s position being charged in Queensland any different than a position of a resident of Queensland would have been if charged with the same offence in Queensland? Answer, no.

HER HONOUR:   Yes, I understand that point.

MR DONAGHUE:   Yes.  If the Court pleases, those are my submissions.

HER HONOUR:   Yes, Mr Fitzgibbon.  Just before you start, although you have not addressed on every issue in your written submissions, particularly of the first set of submissions, I have assumed for the purpose of this hearing you are relying on all the separate points made?

MR FITZGIBBON:   Yes, I am, your Honour.

HER HONOUR:   I just wanted to confirm that.

MR FITZGIBBON:   Yes, thank you, your Honour.  Your Honour, the difficulty I see with the Queensland courts adjudicating on the matter, and I appear there quite regularly, is the problem that to sit on their own question of their own jurisdiction would be, to say the least, very difficult if not impossible because the common law has not only been redefined, it has been repealed.  That is the difficulty I see. 

The second issue is to my friend for the second and third respondents, he puts up the proposition, well, the position as drafted in the Constitution itself would protect my client and that, in fact, Commonwealth Acts could be used, so the Commonwealth Uniform Procedure Act could be used. That has not been my experience. Indeed, in 2001 the steps taken in Queensland were to confirm that this is the law – the former Premier, Mr Beattie, very clearly made that in the second reading speech to which I refer. He said, no, this is the paramount law of the State. It is found – I am sorry, your Honour, but I just do not want to be imprecise in any way. He says that in the second reading speech where he clearly says - and, more than that, in fact, there was a legislative effect to bring all existing legislation into and under that constitution. He makes that incredibly clear.

So that is my difficulty with that.  The problem with it is that, in my submission, it is a matter where I – should I take the step of change of venue or, indeed, a stay, I will be met, I believe, with the position that your argument over the common law we cannot hear it.  Now, the answer is I have had that said to me on more than one occasion and I tell your Honour that from the Bench and I could refer you to cases where that has been said.  So I find great difficulty in that.  As I say, it is a matter that is, in my submission, quite critical.

Your Honour, of course, has those powers under 25 to do, in a hearing like this – but if your Honour is minded to, in fact, dismiss, I would urge on your Honour to – within you have the power to do it – to permit me to have a summons filed as a matter of urgency.  So there is not a – because no real step has been taken, then I would urge on your Honour to delay until I do take steps to, in fact, put a summons on or whatever step may be appropriate.

HER HONOUR:   Sorry, I am not quite following what summons you wish to put on.

MR FITZGIBBON:   I believe the summons would, in fact, go to the issue of either a stay or a venue change.

HER HONOUR:   That is something you would do in Queensland.

MR FITZGIBBON:   Yes.

HER HONOUR:   Yes, I see.  There will be no inhibitions on you doing that as promptly as you might.

MR FITZGIBBON:   No.  I realise I am not going to be with an argument of a stay.

HER HONOUR:   No.  I do not think it would be within my power to be controlling that.  In fact, you would be at liberty, I would have thought ‑ ‑ ‑

MR FITZGIBBON:   Yes, that is, I believe ‑ ‑ ‑

HER HONOUR:   You would be at liberty to take whatever steps you though appropriate.  I dare say, from everything you have said, you would do so very promptly.

MR FITZGIBBON:   Yes.  Your Honour, I do not believe there is anything unless I can ‑ ‑ ‑

HER HONOUR:   Well, finally, this is a matter where costs should follow the event, do you agree?

MR FITZGIBBON:   It is the rule in the Court and the Act.

HER HONOUR:   It would be the usual course, yes.

MR FITZGIBBON:   Yes, except my client – may I put this, my client is bankrupt.  I have assisted him as a friend as, indeed, has – I am not here as a friend, but he has very limited means.

HER HONOUR:   Yes, very well.

MR FITZGIBBON:   I cannot take it any further.  Thank you.

HER HONOUR:   No.  I will adjourn the hearing of the matter for about 15 minutes.  If I need any more time, someone will let you know.

MR FITZGIBBON:   Thank you, your Honour.  Thank you for your consideration.

AT 10.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.45 AM:

HER HONOUR:   The order I make is that the plaintiff’s application is dismissed with costs and I publish my reasons.

Adjourn the Court.

AT 10.45 AM THE MATTER WAS CONCLUDED