Hinton v Cwealth of Aus

[1997] HCATrans 165

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S154 of 1996

B e t w e e n -

ERNEST JOHN HINTON

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

SENATOR JOHN HERRON

Second Defendant

THE HONOURABLE PETER COSTELLO

Third Defendant

Application by defendants to set aside statement of claim

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 16 JUNE 1997, AT 9.37 AM

Copyright in the High Court of Australia

MR G. JAUNCEY:   I appear on behalf of Mr Hinton in this matter.  (instructed by the Sydney Regional Aboriginal Corporation for Legal Services

We are not actually solicitor on the record.  The solicitor on the record is previously the Aboriginal Legal Service Ltd, New South Wales.

HIS HONOUR:   Let me get the other appearance.

MS V.A. HARTSTEIN:  May it please the Court, I appear for the applicant on the notice of motion, all the defendants.  (instructed by the Australian Government Solicitor)

MR JAUNCEY:   I am employed by the Sydney Regional Aboriginal Corporation for Legal Services which is the new ALS and Mr Hinton has instructed us to withdraw these proceedings.

HIS HONOUR:   Right, very well.  Now, for the sake of good order, could you file a notice of your assumption of the carriage for Mr Hinton.

MR JAUNCEY:   Yes, by this afternoon?

HIS HONOUR:   Yes, of course. 

MR JAUNCEY:   We only received instructions on Saturday morning, your Honour.

HIS HONOUR:   Yes.  I understand the haste that is attended to it.

MS HARTSTEIN:   Your Honour, in those circumstances, I am instructed to ask for costs both of the notice of motion and on the statement of claim.

HIS HONOUR:   Yes. What do you say about that, Mr Jauncey?

MR JAUNCEY:   These proceedings arose, your Honour, out of circumstances last year involving the ‑ ‑ ‑

HIS HONOUR:   Which have come to pass, really.

MR JAUNCEY:   Yes.  The imminent closure of the Aboriginal Legal Service.  Mr Hinton was a representative action.  I think it would be a bit unfair on him.  He is currently a prisoner of Her Majesty’s.  Any such order for costs is going to be nugatory.

HIS HONOUR:   It does not sound a very fruitful prospect, Ms Hartstein.

MS HARTSTEIN:   Your Honour, if I may be heard on that.  Whether or not the Commonwealth is eventually able to recover is a different matter from whether they are entitled to an order for costs.

HIS HONOUR:   Yes, I think you are entitled.

MS HARTSTEIN:   Thank your Honour.

HIS HONOUR:   On the defendants’ motion filed 13 May 1997, the Court by consent orders that the action be dismissed.  The plaintiff will pay the costs of the defendants of the action and of the motion.

MS HARTSTEIN:   If the Court pleases.

HIS HONOUR:   You will have that notice of appearance on today?

MR JAUNCEY:   I will, sir.

AT 9.40 AM THE MATTER WAS CONCLUDED