Kelly v Arnison

[2002] HCATrans 114

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
  Brisbane  No B65 of 2001

B e t w e e n -

EDWARD KELLY

Applicant

and

MAJOR GENERAL PETER ARNISON A.O.

First Respondent

PETER DOUGLAS BEATTIE

Second Respondent

DESMOND JOSEPH O’SHEA

Third Respondent

Office of the Registry
  Brisbane  No B104 of 2001

B e t w e e n -

EDWARD KELLY

Applicant

and

MAJOR GENERAL PETER ARNISON A.O.

First Respondent

PETER DOUGLAS BEATTIE

Second Respondent

DESMOND JOSEPH O’SHEA

Third Respondent

Summonses to strike out applications for special leave

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 APRIL 2002, AT 9.32 AM

Copyright in the High Court of Australia

___________________

MR M.D. HINSON, SC:   If your Honour pleases, I appear for the applicants on the summons who are the respondents on the special leave applications.  (instructed by the Crown Solicitor for the State of Queensland)

HIS HONOUR:   Are there any other appearances?

MR M.E. HANSON:   Your Honour, I seek leave to appear on behalf of the Official Trustee in Bankruptcy, who is referred to in paragraph 6 of the summons.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes.

MR HINSON:   Thank you, your Honour.

HIS HONOUR:   I will come back to that.  Any appearances for the other party.

MR N. KELLY:   I appear on my own behalf, your Honour.  My name is Mr Kelly.

HIS HONOUR:   Now, in one of the proceedings Mr Kelly is identified as Mr Sharples. 

MR KELLY:   That was my former name, your Honour.

HIS HONOUR:   That is right.  I understand that.  So, should not the record in the first matter be adjusted to describe you in both as “Kelly”.

MR KELLY:   Well, I took some advice on that.  I was told, most probably incorrectly, that it should stand as it was originally in the court below.

HIS HONOUR:   It only leads to confusion and embarrassment for you, I think, Mr Kelly.  I think I will direct ‑ ‑ ‑

MR KELLY:   I am happy either way, your Honour.

HIS HONOUR:   Yes.  I think I will direct that in the first of the matters, that is matter No B65 of 2001, the identity of the applicant be changed from “Terry Patrick Sharples” to – just give me your full name, Mr Kelly.

MR KELLY:   Ned Kelly.

HIS HONOUR:   To “Ned Kelly”.  Yes, thank you.  Yes, Mr Hinson.

MR HINSON:   Your Honours, material is, in each case, a summons filed on 1 March, an affidavit of ‑ ‑ ‑

HIS HONOUR:   Just a moment, I think I should give leave to Mr Hanson, unless there is any opposition to that cause.

MR HANSON:   Thank you, your Honour.

HIS HONOUR:   Yes, Mr Hinson.

MR HINSON:   The material is, as mentioned, your Honour, a summons filed on 1 March this year, an affidavit of Philip Keith Boustead filed on the same day.

HIS HONOUR:   Now, there are two summonses, one in each matter?

MR HINSON:   There is one in each matter and in each matter ‑ ‑ ‑

HIS HONOUR:   Each filed on what date?

MR HINSON:   1 March this year, your Honour.

HIS HONOUR:   Yes.

MR HINSON:   And in each matter an affidavit of Philip Keith Boustead filed on the same day, 1 March.  Can I point out to your Honour that in each matter there has been a summons filed by Mr Kelly, I think on 10 April, and it is in respect of that summons that there is an appearance on behalf of the Trustee in Bankruptcy by Mr Hanson.

HIS HONOUR:   What does that summons seek?

MR HINSON:   It seeks an adjournment of my applications and other relief in relation to costs and asks for leave to issue a subpoena against the Trustee in Bankruptcy.

HIS HONOUR:   Yes.  Well, Mr Hinson, it seems to me that the better course from the Court’s point of view, probably from the parties point of view really, is that all these matters be dealt with in the special leave list in Brisbane starting on 24 June 2002.  What I propose to do would be to stand over your summonses filed on 1 March and Mr Kelly’s summonses, in so far as it is necessary to do so, stand them all over to be listed in the week of the Brisbane sittings commencing on 24 June, to be listed immediately ahead of, but with, the special leave application. 

It may be, for example, that the panel hearing the special leave application, which would be a plurality of judges, prefers to proceed on the footing that, whatever the position is about the bankruptcy, there are no prospects of success because Mr Justice McPherson’s decision in the Court of Appeal is absolutely correct and that is a possible point of view and I would not wish now to foreclose the special leave panel from acting in that manner if they were so advised.

MR HINSON:   Does your Honour then contemplate that the respondents to the special leave application ought to file a summary of argument which they have not presently done yet?

HIS HONOUR:   Yes.

MR HINSON:   We will attend to that.

HIS HONOUR:   Very well.

MR HINSON:   Can I ask your Honour to reserve the cost of today’s hearing?

HIS HONOUR:   Yes.

MR HINSON:   Could I further ask that your Honour certify for the attendance for counsel today?

HIS HONOUR:   Yes.  Now, Mr Kelly, have you understood what I have been saying?

MR KELLY:   Yes, your Honour, I have.

HIS HONOUR:   All these matters will be thrashed out together so you are not being shut out today.

MR KELLY:   No, I appreciate that.

HIS HONOUR:   It will all be thrashed out before two judges, at least, in Brisbane on the special leave day.

MR KELLY:   There is only one point, your Honour.

HIS HONOUR:   Yes.

MR KELLY:   If I could.  In my summons of 10 April, paragraph 6, sought leave to issue a subpoena.  Am I to assume that the Trustee in Bankruptcy will attend or do I need to subpoena him to make sure he will attend? Up until this morning I was told that they were not going to attend.

HIS HONOUR:   I think Mr Boustead has now appeared so I think he will be coming along.

MR KELLY:   No, Mr Boustead, I think, is the solicitor for the Crown.

HIS HONOUR:   Yes.

MR HANSON:   I am sorry, your Honour, I am in that matter for the Official Trustee.

HIS HONOUR:   Yes.

MR HANSON:   We think that the issue of a subpoena in respect of this litigation to the Trustee in Bankruptcy is, prima facie, an abuse of the process of the Court.

HIS HONOUR:   Yes.

MR HANSON:   If it is a matter that arises, that is, if he files a praecipe and a subpoena is issued before the special leave, we will seek to have the matter determined then.  We would not think that any of the documents held by the Trustee would be relevant to the special leave application.

HIS HONOUR:   I would not have thought so.  So, Mr Kelly, I do not grant you leave to issue the subpoena now.  You can renew the application, if you wish, before the Full Court in Brisbane in June.

MR KELLY:   Thank you, your Honour.

HIS HONOUR:   Just pardon me a minute, will you?

In the first two matters, both now identify Mr Kelly as the applicant.  Both of those matters I stand over to the special leave list in Brisbane for June 2002.  Each of the summonses filed by the applicant and by the first, second and third respondents, are to be listed with the substantive special leave applications on the relevant day.  The costs of today’s proceedings are reserved and I certify for the attendance of counsel. 

I will now adjourn to reconstitute.

AT 9.42 AM THE MATTER WAS CONCLUDED