Jauncey v Law Society of New South Wales

[1989] HCATrans 40

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl3 of 1989

B e t w e e n -

GARRY FRANK JAUNCEY

Applicant

and

LAW SOCIETY OF NEW SOUTH WALES

Respondent

Application for stay

MASON CJ

(In Chambers)

Jauncey

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 2 MARCH 1989, AT 9.30 AM:

(Continued from 28/2/89)

Copyright in the High Court of Australia

C2Tl/l/MB 4 2/3/89

MR A. HOGAN:  May it please Your Honour, in that matter I now

appear for the applicant. (instructed by Bowman

and Mackenzie)

MR G. RICHARDSON:  May it please Your Honour, I appear for

Hollingaale and Page) the resRondent Law Society. (instructed by Freehill

MR HOGAN:  Your Honour may recall this matter being before

Your Honour on 28 February.

HIS HONOUR:  Yes, my memory is not so bad that I have forgotten

what happened two days ago.

MR HOGAN:  Thank you, Your Honour. Your Honour, part of the

difficulty is that the application by the Aboriginal

Legal Aid Society for permission to employ the

applicant will be heard this evening.

HIS HONOUR:	Yes.
MR HOGAN:	If that decision is favourable, of course, the

special circumstances which would justify a stay

would fall to the ground and these whole proceedings

might be unnecessary. One possible way out of the

proceedings might be to adjourn the matter until

Monday. in which case it may well be that there will be no necessity to proceed with the summons at all.

HIS HONOUR:	Yes. Well, Monday is an inconvenient day.
MR HOGAN:	Very well, Your Honour, we will proceed with the

whole matter now.

HIS HONOUR:  Well, the only point is this, that I might adjourn

the matter until Tuesday.

MR HOGAN: That is even more convenient, Your Honour.

HIS HONOUR: Is it? What is your attitude to that?

MR RICHARDSON:  That is not consented to, Your Honour, and

·r will speak to it if Your Honour wishes me to

now?

HIS HONOUR:  Yes, you had better speak to it, I think,

Mr Richardson.

MR RICHARDSON:  Your Honour, the application for a stay

is, and.would be, even if the matter were adjourned,

opposed.

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Jauncey

HIS HONOUR:  I appreciate that, but the fact is that a stay

was granted pending the appeal from the statutory

cormnittee to the Court of Appeal and a stay was

then granted by the Court of Appeal following its

dismissal of the applicant's appeal to that court. special leave can be heard on Friday, the 17th of

this month, which is - what, 15 days away. In

those circumstances, while the application for

special leave is on the file, it is obvious that
the Court would be strongly minded, subject to

what you say, to grant a stay.

MR RICHARDSON:  Yes, Your Honour, I understand that. Could I

just point out - I am not sure whether Your Honour

is aware of that - that the stay granted by the

Court of Appeal was a stay granted by consent - - -

HIS HONOUR:  Yes, I am aware of that.

MR RICHARDSON: - - - with the consent of the Law Society and

for a particular reason, the reason being the
temporary, overriding public interest in ensuring
that the Aboriginal Legal Service find a replacement

employee to take over the duties relating to the

clients with which the appellant was currently

engaged.

Now, a month has passed and there has been

no material filed in this Court in application in

support of the continuation of a stay or a stay by

this Court which demonstrates the continuation of

a public interest in that light. My submission,

Your Honour, is that to stand the application for

a stay over for a few days pending the determination

by the appropriate cormnittee of council on the

application for employment as a clerk is not

relevant. That is not relevant to a temporary stay

because either the council will decide that he may

be employed as a clerk in those circumstances, in

which case my friend has conceded that the application

· for stay would fall to the ground, or it would be

refused, in which case, Your Honour, we are merely

as we are today, and the matter can be dealt with as easily today as whether that decision has been

made.

(Continued on page 7)

C2T2/l/SH	6	2/3/89
Jauncey

HIS HONOUR:  True, but I cannot put aside the possibility that

if the application for special leave is proceeded

with, the application may succeed. If it succeeds,

then the question of the appeal is at large.	Now,
of course, the applicant has very considerable

difficulty in securing special leave in a case like

this. But while the application is on the file, how

can I put that aside as a possibility?

MR RICHARDSON:  Your Honour, with respect, by applying the

principle that applications for stay, pending appeal

to this Court, are to be granted only in extraordinary

circumstances on the authorities and, it has been said,

only in circumstances where to fail to grant a stay

may well mean that a subsequent appeal, if successful,

would be nugatory. The most recent decision,

Your Honour, is - - -

HIS HONOUR:	BURGUNDY ROYALE, you are referring to?
MR RICHARDSON:	I am referring to PARINGA V NORTH FLINDERS,

Your Honour.

HIS HONOUR:  Yes, but you see what happened in PARINGA -

in fact, that principle had been applied in PARINGA,

then a grave injustice would have been done.

MR RICHARDSON:  Your Honour, ultimately it was, in fact,

applied in PARINGA.

HIS HONOUR:  No, it was not, ultimately. But all I am doing

is to point out to you that if you take that principle

too far, if you take it to its logical extent, it may

result in an applicant for special leave being shut

out in circumstances where he should not be shut out.

MR RICHARDSON:  Your Honour, my submission is though, that to

have his name removed from the roll now and subsequently

restored - the disadvantage to him is well and truly

outweighed by the disadvantage to the public by having

his name remaining on the roll in circumstances where

the statutory connnittee and the Court of Appeal, by

majority, have found that he is unfit to remain on

the roll ..

HIS HONOUR:  What is secured by his removal from the roll now

rather than, say, in 15 days time on the assumption

that the application for special leave to appeal is

refused then?

MR RICHARDSON:  Well, it is only a matter of time, Your Honour,

as your Honour points out. I turn back in

myself, Your Honour, and submit that the principle

is that it is for the applicant to demonstrate - - -

C2T3/l/JH	7	2/3/89
Jauncey

HIS HONOUR:  Yes, 1 follow that.

MR RICHARDSON: My submission, Your Honour, is that it

has been found that he is unfit to remain on

the roll and that, in the absence of any special

or extraordinary circumstances placed betore

this Court, the order as it currently exists

should stand and not be stayed and no material

has been filed in this Court to show why there

are extraordinary circumstances.

HIS HONOUR:  Mr Richardson, I am disposed to stand the

matter over until 9.30 on Tuesday morning next.

MR RICHARDSON:	May it please Your Honour.
HIS HONOUR:	This matter will stand adjourned until 9.30

on next Tuesday morning. The existing stay

will continue up to and including that day upon

the applicant, by his counsel, giving an

undertaking that he will not practise as a

solicitor on his own account.

MR HOGAN:  I now give that undertaking.

HIS HONOUR:  Very well, Mr Hogan. The matter will stand

adjourned accordingly.

AT 9.38 AM THE MATTER WAS ADJOURNED SINE DIE

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Jauncey