Kanak v C of A

[1999] HCATrans 33

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S57 of 1998

B e t w e e n -

DOMINIC (WY) KANAK

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Application by defendant for remitter

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 25 FBRUARY 1999, AT 9.40 AM

Copyright in the High Court of Australia

MR D. (WY) KANAK appeared in person.

MR A. ROBERTSON, SC:   If your Honour pleases, I appear for the defendant.  (instructed by the Australian Government Solicitor)

HER HONOUR:   It is your application, Mr Robertson.

MR ROBERTSON:   Yes, your Honour.  What the defendant would propose in relation to the summons, dated 17 February 1999, is that the matter be remitted to the Federal Court of Australia New South Wales District Registry, pursuant to section 44.  The summons says "the Judiciary Act 1901" but if your Honour would read that as "1903".  Does your Honour have the summons?  I have a copy of it if that would assist your Honour.

HER HONOUR:   Yes, I have.

MR ROBERTSON:   Does your Honour have it?

HER HONOUR:   Yes.

MR ROBERTSON:   In terms of orders 1, 2, 3 and 4.  In the defendant's submission, your Honour, this is a matter that has been in this Court and really going nowhere for 9 months or so.  It really needs some, at the very least, case management on an active footing.  I will not take your Honour through the affidavit in any detail but that shows that there has been a request for particulars of the statement of claim outstanding for most of that period of 9 months that I have mentioned and we would submit that the proper course would be to remit it with those directions, 2, 3 and 4, that we set out in the summons, and then leave the question of the stay or dismissal, the plaintiff's notice of discovery and other case management matters to the Federal Court to deal with, your Honour.  Thank you, your Honour.

HER HONOUR:   Yes, thank you.  Yes, Mr Kanak?  Do you oppose that course?

MR KANAK:   Yes, your Honour.

HER HONOUR:   Why?

MR KANAK:   I have lodged a notice of a constitutional matter and from what I can understand of the High Court Act, the Court does have jurisdiction to hear - - -

HER HONOUR:   It is not a question of jurisdiction, it is a question of where the matter can conveniently proceed.

MR KANAK:   I do not object to the matter proceeding, your Honour, but I have sent a fax in answer to the Australian Government Solicitor's request seeking consent to the remittal and I explained in that fax that I probably would need legal aid to reply to that because I do not know the consequences of it if it is remitted.  There is, in the summons, mention of cost orders and costs already in this Court that I do not really understand what they would mean if it is remitted to the Federal Court.

HER HONOUR:   If the matter were remitted to the Federal Court, it would proceed in that court.  As a general rule, perhaps almost as an invariable rule, matters that require facts to be found do not proceed initially in this Court.  They are dealt with elsewhere.  As I understand it, all it is is that the costs that have been incurred in this Court - perhaps I am wrong on that.  The costs that have been incurred in this Court will be, at the end of the day, worked out in accordance with the costs of this Court, and the costs that are incurred in the Federal Court, if the matter were remitted, will be in accordance with the costs that obtain in the Federal Court.  Does that correctly summarise what is sought?

MR ROBERTSON:   Yes, your Honour, that is the effect of proposed order 4.

HER HONOUR:   Yes.  There is no order for costs sought against you in these proceedings?

MR ROBERTSON:   We did, in a letter that was sent to Mr Kanak asking for his consent to remitter, say, "and if you don't consent" - - -

HER HONOUR:   Yes, but no costs are sought in any event?

MR ROBERTSON:   But that can be left to the Federal Court to deal with.

HER HONOUR:   Yes.

MR KANAK:   All right.  I probably misunderstood, your Honour.  I thought that there could be a request for the costs so far in this Court, and if I could not pay that, that the matter might not proceed in the Federal Court.  I misunderstood what was happening there.

HER HONOUR:   The costs thus far in this Court would abide the outcome of the action, is that understood?

MR ROBERTSON:   Yes, your Honour.  To make it clear, there is no prejudice by having it remitted.  The defendant would, of course, reserve its right as the end of the day to say, "In these events there should be a cost order in favour of the defendant" or whatever it might be but it is not a matter that the act of remitter determines, if I can put it that way.

HER HONOUR:   Yes.  Do you understand that, Mr Kanak?

MR KANAK:   Yes.

HER HONOUR:   Do I take it that on that basis you have no objection to the matter being remitted?

MR KANAK:   If your Honour sees the matter as one in which the facts have to be properly proven, then I suppose that is better done in the Federal Court but if, your Honour, upon the evidence already before her were not of that opinion, then I would ask that it proceed in this Court.

HER HONOUR:   It would just seem that there may be facts to be found, just looking at the documents.  It seems, if your case is to proceed, it will need some factual material to be determined.

Very well, in that case I will make the orders in accordance with orders 1, 2, 3 and 4 of the summons of 17 February 1999, and I will make it clear, for the sake of Mr Kanak, that there will be no order for costs against him at this stage of the proceedings in the Court; that the costs of the steps taken in the Court to date will abide the outcome of the action in the Federal Court.

MR ROBERTSON:   And, your Honour, would it be appropriate to certify under Order 71 rule 62?  I am not sure how the Federal Court would be able to deal with this matter.

HER HONOUR:   Yes.  Yes, I will certify for the attendance of counsel.

MR ROBERTSON:   As your Honour pleases.

HER HONOUR:   That simply means that I have noted that the Commonwealth has sent a barrister along today, for the costs, and that it was appropriate to do so.

MR KANAK:   I see.

HER HONOUR:   Yes, thank you.  Very well, there will be orders as I indicated in terms of 1, 2, 3 and 4 of the summons.  The Court will now adjourn.

AT 9.48 AM THE MATTER WAS CONCLUDED