Jones v Skyring; Jones v Cusack

[1992] HCATrans 242

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IN THE HIGH COURT OF AUSTRALIA

Registry No C4 of 1992

B e t w e e n -

FRANK WILLIAM DUDLEY JONES

Applicant

and

ALLAN GEORGE SKYRING

Respondent

For Judgment

Registry No CS of 1992

B e t w e e n

FRANK WILLIAM DUDLEY JONES

Applicant

and

PATRICK LEO CUSACK

Respondent

Skyring(l4) 1 27/8/92

For Judgment

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 27 AUGUST 1992, AT 9.01 AM

(Continued from 26/6/92)

Copyright in the High Court of Australia

HIS HONOUR:  In this matter there will be an order in terms

of paragraph 1 of the application, an order that
the respondent shall not, without the leave of the

Court or a Justice, begin any action, appeal or other proceeding in the Court.

Mr Erskine do you wish to be heard as to the

terms of the order?

MR C.M. ERSKINE: (instructed by the Australian Government

Solicitor). Yes, may it please Your Honour. The application would be that Your Honour's order not

exclude the respondent from being able to appeal

against Your Honour's judgment were he so minded to

do so.

HIS HONOUR:	Yes, I certainly accept that.
MR ERSKINE:	And on my reading of the Judiciary Act and the rules of this Court it would be necessary for
Your Honour to frame the order in that way because he would otherwise have a right of appeal as a
separate action without otherwise requiring leave.
Your Honour's order would, therefore, preclude him from doing that unless it were to exclude an appeal
against this order.

HIS HONOUR:  Yes, I am certainly prepared to do that. Do

you have any suggestions as to the language of the

order?

MR ERSKINE:  Perhaps adding at the end of the paragraph

words something like this, Your Honour, "other than

an appeal against this order".

HIS HONOUR: Anything else?

MR ERSKINE:  I am also instructed to seek an order for

costs, Your Honour.

HIS HONOUR: Yes. Well, Mr Skyring is not here.

MR ERSKINE: Yes.

HIS HONOUR:  I am not disposed to make an order for costs

against him in his absence. I suppose what I could

do is direct that within 14 days he make any

submission in writing he wishes to make against an

order for costs. Do you see any problem with that?

MR ERSKINE:	I do not, Your Honour, no.
HIS HONOUR:	Would the applicant then want some time to

respond?

Skyring(l4) 2 27/8/92

MR ERSKINE:  It might be appropriate, Your Honour; another

14 days from that.

HIS HONOUR:  And the other way, I suppose, is to invite you

to make submissions as to why an order for costs

should be made. Perhaps that ought to be done so

that there is something on transcript that

Mr Skyring can see as to the basis upon which an

application is made for costs, then give him time

to respond and give the applicant time, if he

wishes, to make use of that opportunity to respond

to any submissions made by Mr Skyring.

MR ERSKINE:  Yes. Your Honour, in my submission the reason

for an order for costs would be simply that it is

the standard practice that the successful party is
entitled to the costs of the application as brought

to the Court. In my submission, this application

is no different from any other application that

might have been brought in the jurisdiction of the

Court, from the point of view of the principle that is espoused there and, in my submission, there·is

no reason to depart from the ordinary course, which

is that a successful party has the costs of the

application.

HIS HONOUR: Yes. Well, at least that much appears on

transcript. Before I make a formal order I should

publish my reasons which I now do.

I understand, Mr Erskine, the reasons are

available in Registry for collection.

MR ERSKINE:	Thank you, Your Honour.
HIS HONOUR:	There will be an order then that the

respondent, Mr Skyring, shall not, without the

,leave of the Court or a Justice, begin any action, appeal or other proceeding in the Court other than

an appeal against this order. I reserve the

question of costs and direct that if the respondent

wishes to oppose the order for costs made on behalf	of the applicant he do so in writing within
14 days, and that on receipt of any such submission
the applicant shall have 14 days in which to make a
reply in writing if he so wishes.

MR ERSKINE:	May it please the Court.
HIS HONOUR:	In the matter of Cusack there will be an order

in terms of paragraph 1 of the application, subject

to the matters that Mr Erskine has raised with me.
I publish my reasons.

I would think, Mr Erskine, that there should

simply be an order in the same terms as in the
previous matter, again reserving the question of

Skyring(l4) 3 27/8/92

costs with the same direction that I gave in the

matter relating to Mr Skyring.

MR ERSKINE: Indeed, Your Honour.

HIS HONOUR: Very well. There will be an order and

direction in those terms.

AT 9.06 AM THE MATTER WAS ADJOURNED SINE DIE

Skyring(l4) 27/8/92