Hutchison 3G Australia Pty Ltd v Hurstville City Council

[2003] HCATrans 331

[2003] HCATrans 331

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S400 of 2003

B e t w e e n -

HUTCHISON 3G AUSTRALIA PTY LTD

Applicant

and

HURSTVILLE CITY COUNCIL

Respondent

Application for expedition

HEYDON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 1 SEPTEMBER 2003, AT 9.06 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please your Honour, I appear with my friend, MR D.P. WILSON, for the applicant.  (instructed by Truman Hoyle)

MR K.M. CONNOR:   May it please the Court, I appear for the respondent.  (instructed by Deacons Lawyers)

HIS HONOUR:   The Court can hear the application for special leave on 3 October, but it cannot hear it before without displacing some other matter.  It would be highly undesirable to do so, in view of the fact that most of those other matters involve people in some form of detention.  Is that date satisfactory, from the point of view of ‑ ‑ ‑

MR WALKER:   Yes.  Your Honour will have noticed that there is, I think, literally, a “self‑destruct” condition ‑ ‑ ‑

HIS HONOUR:   Yes, which on the undertaking offered to Mr Justice Handley assumes that the special leave hearing will take place on Friday the 26^th and will be determined on that day. 

MR WALKER:   I hasten to say, there was no assumption, let alone presumption, there.  It was a date selected for that event to occur.  It certainly involved no assumption. 

HIS HONOUR:   Yes.  Mr Connor, if Mr Walker extended his undertaking so that the self‑destruction occurred on 3 October, would that be satisfactory? 

MR CONNOR:   That is satisfactory. 

HIS HONOUR:   And you do not oppose the application for expedition? 

MR CONNOR:   I do not oppose the application, no. 

HIS HONOUR:   Very well.  I think if we just look at that undertaking – I should say, I have read the whole contents of the file, particularly the affidavits of Stephen Birnie of 6 August and 27 August.  Annexure B to the affidavit of 27 August is Mr Justice Handley’s judgment.  Paragraph 10 of that contains the undertakings which Mr Walker offered on that occasion.  I take it we should change, in paragraph 1, the reference to 26 September to 3 October? 

MR WALKER:   Yes, your Honour. 

HIS HONOUR:   And the same change several times ‑ ‑ ‑

MR WALKER:   I am so sorry, no, in paragraph 1, I think that has been exhausted historically.  We have done paragraph 1 with that view. 

HIS HONOUR:   It is highly controversial, actually, whether you have promptly sought expedition from the High Court, but you now have sought expedition, yes.  So you need not change paragraph 1. 

MR WALKER:   No, but I think paragraph 3 is the one that we would seek the regime to be extended to 3 October. 

HIS HONOUR:   I think, though – I am sorry to be tedious about this ‑ you do have to prosecute the special leave application.  For example, you have issued the 78B notices? 

MR WALKER:   We have. 

HIS HONOUR:   And have they been replied to? 

MR WALKER:   We have, I think, had replies from everyone, but two of the replies are that they are still considering. 

HIS HONOUR:   Yes.  Does it do any harm to change the date? 

MR WALKER:   No, it does not do any harm at all, your Honour. 

HIS HONOUR:   I think the date 26 September 2003, which appears in paragraphs 1 and 3 of the undertaking and accepted by Mr Justice Handley, will be changed to 3 October.  It follows from what you have been saying that you have instructions to offer that undertaking to this Court? 

MR WALKER:   I do, your Honour. 

HIS HONOUR:   That undertaking is accepted.  The Court orders that the hearing of the special leave application be expedited and stands it into the list on 3 October 2003.  Costs should be costs in the application, and I certify for counsel.  

MR WALKER:   May it please your Honour. 

HIS HONOUR:   Is there anything else? 

MR CONNOR:   Nothing further, your Honour. 

MR WALKER:   No, your Honour. 

HIS HONOUR:   The Court adjourns. 

AT 9.10 AM THE MATTER WAS CONCLUDED