Kee v Taranto

[1989] HCATrans 116

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S78 of 1986

B e t w e e n -

GRAHAM KEE

Plaintiff

and

GREGORY TARANTO and MARILYN

FRANCES TARANTO

First Defendant

TARMOORE PTY LTD

Second Defendant

THE NOMINAL DEFENDANT OF QUEENSLAND

Third Defendant

THE WORKERS' COMPENSATION BOARD

OF QUEENSLAND

Fourth Defendant

Kee
MR. S.D. RARES:	May it please Your Honour, I appear for the

Application to strike out

parties to the summons

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 17 MAY 1989, AT 10.18 AM

Copyright in the High Court of Australia

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second and fourth defendants who are the applicants

in the sunnnons. (instructed by Messrs Hunt & Hunt)

MR P. CARROLL:  May it please Your Honour, I appear for the

plaintiff. (instructed by Carroll & O'Dea)

MR RARES:  Your Honour, I have to confess that we now realize

we have not given notice under section 78B of the

JUDICIARY ACT to the Attorneys in respect of this

matter. One of our grounds for striking out

the claim is that under section 75(iv) of the

CONSTITUTION the company, the second defendant, is not

a resident of Queensland; therefore the action against

it is bad and unless the plaintiff removes it from

the action, the whole action goes, according to what

Sir Owen Dixon said in COX V JOURNEAUX, and

Justice Gaudron recently applied.

HIS HONOUR:  Yes. You are aware of a decision in ROCHFORD V

DAYES?

MR RARES:  Yes, Your Honour. So it may be that we should

adjourn the matter, if Your Honour were minded to do

that, so that we give that notice.

HIS HONOUR:	What do you say, Mr Carroll?
MR CARROLL:	Your Honour, if that is going to be the necessary course, then I cannot object to an adjournment. I
should point out that my difficulty is we have lost
contact with the plaintiff and have not been able to
contact him since April of last year. So that I am in
difficulty with instructions to consent to this
application.  We are still making efforts to contact
the plaintiff. That is my difficulty. It may be, if
it is adjourned, I might have success in contacting him but at this stage it is not looking that bright.
HIS HONOUR:	Has there been no further steps taken in the action

at all since-

MR CARROLL:  None since the filing of this sunnnons to set

aside.

HIS HONOUR:	What about the question of costs?
MR CARROLL: Again, I am in difficulty there, Your Honour.	I

cannot consent, of course, and I can assume instructions

to oppose it as best I can.

HIS HONOUR: Well, I was wondering whether you were applying

for costs, since your opponent- - -

MR CARROLL:  Of today, certainly, Your Honour. I would have

to apply for costs, I imagine. If it is the fault of

the defendant in not sending those notices, then I

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Kee

would have to apply for today's costs, as minimal

as they might be.

HIS HONOUR:	Mr Rares, what about costs?
MR RARES:	Your Honour, the reason this application has been

brought on is because of the difficulty my friend has

in getting instructions from his client and as we

understand it - and there has been voluminous

correspondence between the parties - this case is

hopelessly statute barred. The problem for the

plaintiff is that he sued on the last day of what he

thought was the limitation period. My solicitors have

sent my friend's firm correspondence that shows the

claim form and a medical report dated some time before

the day he says he had the accident.

HIS HONOUR: Let that be assumed in your favour, that the action is hopeless and will ultimately fail, the fact is that

the costs of today are thrown away by reason of your

side's failure to give notice to the Attorney.

MR RARES:  Your Honour, we may be able to cure that in the

sense that one course that might be convenient for

Your Honour is to deal with the matter today and

require notice to be given to the Attorneys.	The
point, as we see it, is one that could only be

dealt with by a Full Court and twice the Full Court

has refused to reconsider the decision in AUSTRALIAN

TEMPERANCE SOCIETY V HOWE~ both in COX V JOURNEAUX

and CROUCH V THE COMMISSIONER FOR RAILWAYS. So that,

in a sense, giving of the notice is just going to be

completely academic.

I am instructed by my instructing solicitor, who

has also been instructing solicitor in ROCHFORD V

DAYES which Justice Gaudron recently decided, that a

notice was given in that case and none of the Attorneys

showed any interest in the matter.

HIS HONOUR:  I appreciate all that but the terms of 78B are

quite mandatory and we cannot proceed to hear the

matter and the costs of today, such as they are, on the

part of the plaintiff's side are going to be thrown

away by reason of your failure to give the notice.	I
think you will have to pay the costs of the day,
Mr Rares.

How long do you want it adjourned for?

A month, Your Honour, or such time as it is

conveninent for the Court next to deal with it.

HIS HONOUR:  What about 15 June?

If that is convenient to Your Honour.

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Kee

HIS HONOUR:  Mr Carroll?

MR CARROLL: That is convenient, Your Honour.

HIS HONOUR:  In the matter of Kee v Taranto I stand that

matter over to 15 June and I order that the

second and fourth defendants pay the costs of today.

I note that in the meantime the second and fourth
defendants will give notice to the Attorney-General
pursuant to section 78B to raise the constitutional
question as to whether or not a corporation is a
resident of a State within the meaning of section 75(iv)

of the CONSTITUTION.

Is there anything further?

MR CARROLL:  No, Your Honour.

No, Your Honour.

UNTIL THURSDAY, 15 JUNE 1989

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