King, Tamara by her next friend Phillippine King v Western Sydney Area Health Service

[2014] HCATrans 33

[2014] HCATrans 033

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S199 of 2013

B e t w e e n -

TAMARA KING BY HER NEXT FRIEND PHILLIPPINE KING

Applicant

and

WESTERN SYDNEY AREA HEALTH SERVICE

Respondent

Summons

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 27 FEBRUARY 2014, AT 10.00 AM

Copyright in the High Court of Australia

MR R.N. O’NEILL:   If the Court pleases, I appear for the applicant.  (instructed by McDonnell Schroder)

MR M.J. WINDSOR, SC:   If your Honour pleases, I appear for the respondent.  (instructed by Curwoods Lawyers)

HIS HONOUR:   The Deputy Registrar has certified that Phillippine King has indicated that she no longer wishes to be part of these proceedings and does not propose to appear today.

MR O’NEILL:   That was a message I also received, your Honour.  At one stage my solicitor in fact had prepared a document which - titled “Consent” - bears her signature and the signature of the proposed tutor.  Could I also tender that document, your Honour, which backs up the message that has just been received?

HIS HONOUR:   Yes, certainly.  Yes, I will receive the consent and admit it as exhibit 1 in this application. 

EXHIBIT 1:          Consent

MR O’NEILL:   Your Honour, the summons proceeds on the basis of the affidavit of Mr Kevin King.

HIS HONOUR:   Yes.

MR O’NEILL:   There is a deficiency in it, your Honour, which I should draw to your Honour’s attention at an appropriate time.

HIS HONOUR:   You might draw it to my attention now.

MR O’NEILL:   Your Honour, under the Rules a tutor is required to certify no adverse interest to that of the plaintiff.

HIS HONOUR:   Yes.

MR O’NEILL:   He does not specifically do that.

HIS HONOUR:   Yes.

MR O’NEILL:   What I would seek, your Honour, is if the Court is minded to make the orders sought in the summons that it be conditional upon Mr King so certifying within, perhaps, a defined period of time.

HIS HONOUR:   Say a week.

MR O’NEILL:   Yes, thank you, your Honour.

HIS HONOUR:   Yes, very well.  I have read the affidavit.  I am, subject to hearing from the respondent, disposed to make the order on that basis.

MR WINDSOR:   Your Honour, there is no opposition to the order being made.  I cannot consent nor oppose the application.

HIS HONOUR:   No, of course.  Is the name of your client correctly recorded in the application or should it be different?

MR WINDSOR:   Your Honour, I am instructed that my client’s present name is Sydney West Local Health District.

HIS HONOUR:   Sydney West Local Health District.

MR WINDSOR:   Yes, your Honour.

HIS HONOUR:   Would it be appropriate for an order to be made correcting the record?

MR WINDSOR:   Yes, your Honour.

MR O’NEILL:   Thank you, your Honour.

HIS HONOUR:   Very well. 

MR WINDSOR:   Could I ask whether, as a consequence of that order, assuming your Honour makes it, it will be reflected in all the documents that hereinafter go through for the purposes of the special leave application.

HIS HONOUR:   Yes.

MR WINDSOR:   Thank you. 

MR O’NEILL:   Thank you, your Honour.

HIS HONOUR:   I am satisfied in the circumstances that it is appropriate to make the order sought in the summons.  The orders I propose to make are as follows:

1.The name of the respondent be corrected to read “Sydney West Local Health District”.

2.If Kevin King, by 4.00 pm on Friday, 7 March, files an affidavit certifying that he has no interest in the proceedings adverse to Tamara King, Kevin King be substituted as tutor for the applicant.

3.There be no order as to costs.

Those are the orders I make.  The Court will now adjourn.

AT 10.06 AM THE MATTER WAS ADJOURNED