Kolalich v The Queen

[1993] HCATrans 142

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S225 of 1992

B e t w e e n -

RICHARD KOLALICH

Applicant

and

THE QUEEN

Respondent

Directions hearing

MASON CJ

(In Chambers)

Kolalich 1 3/6/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON T~URSDAY, 3 JUNE 1993, AT 10.29 AM

Copyright in the High Court of Australia

MR A.M. MARTIN:  I appear for the applicant, Your Honour.

(instructed by Hovan & Co)

MR I. GUY:  I appear for the Crown. (of the Commonwealth

Director of Public Prosecutions)

MR MARTIN: This is a matter in which senior counsel has

advised that there are no merits in an appeal.

Instructions have been sought in writing from the

client but not as yet obtained in order to

withdraw. I would anticipate that the instructions

could be available - the advice in regard to merits

was received yesterday. I understand the proposed

applicant is now in a more convenient place and one

would normally expect that those instructions will

be forthcoming within seven days.

HIS HONOUR:	Mr Guy, what do you say about that?
MR GUY:	Your Honour, I have no difficulty with the proposed
time frame.  I can indicate, Your Honour, that the
office has not been served with th~ application for special leave. It may well have been served on the
State OPP but we have had no correspondence in relation to the matter other than the letter from
the High Court.

HIS HONOUR:  What do you ask me to do with it? I take it

that if your client gives the appropriate

instructions to withdraw, you can file a document

in the Registry that would dispose of the matter.

MR MARTIN:	Yes, Your Honour.
HIS HONOUR:	So, there is probably no need for me to

consider any other future disposition of it but I

would ask you, Mr Martin, to make sure that the

matter is attended to as quickly as possible. If

there is any delay in the disposition of it,

Mr Guy, you should feel free to have the matter

restored to the list on some occasion so that the

decks can be cleared.

MR GUY: If Your Honour pleases.

HIS HONOUR:  This matter should not clutter up the Court's

list any longer. Now, Mr Martin, one question I want to ask you: there seems to be a pattern of

not serving an application for special leave to

appeal in cases like this one where virtually

nothing is done except to file an application for

special leave to appeal. Now, that rather suggests

to me that it is not merely a matter of the

instructing solicitor being ignorant of an

obligation to serve but that non-service is

motivated by some other consideration.

Kolalich 2 3/6/93

MR MARTIN:  Your Honour, as best I can explain it, I believe

that the misunderstanding comes from a

misinterpretation of a paragraph in Practice

Direction No 1 of 1991. In paragraph 9 that

practice direction is expressed in these terms:

The applicant shall, within the time limited for filing the affidavit in support of the application for special leave, file and serve

on the respondent a summary of the arguments

to be advanced on behalf of the applicant

signed by counsel.

Now, as best I can understand it, Your Honour,

that has given rise to a misunderstanding that the

application for special leave is not to be filed

until such time as the summary of arguments signed

by counsel has been finalized.

HIS HONOUR:  But that is strange, is it not?

MR MARTIN:  Yes, Your Honour. It is difficult to explain,

if I can say, a misunderstanding, but that seems to

be the origin of the misunderstanding.

HIS HONOUR:  I just have a suspicion that service is not

effected in cases where the applicant's solicitor

is not sure that the application is going to

proceed.

MR MARTIN:  I certainly do not think that that has been the

case with any of these matters, Your Honour.

HIS HONOUR:  Have you got any comment to make on that,

Mr Guy?

MR GUY:	No, Your Honour.
HIS HONOUR:	Because, after all, the officers of the DPP

must have considerable experience in these matters.

MR GUY:	Your Honour, I have no comment to make in relation
to my friend's instructions as to interpretation of
the section.

HIS HONOUR:  Yes. But what about the practice of not

serving an application for special leave to appeal

until later? Is that common or not?

MR GUY:	I would not consider it to be a common practice,
Your Honour.  I would think, in the majority of
cases, the application is served.  I can indicate,
and that is why I prefaced my initial remarks, that
at times there is confusion as between the various
agencies of the Commonwealth and the State DPP and it is not uncommon for applications or notices of
appeal to be served on the - - -

Kolalich 3 3/6/93

HIS HONOUR:	- - - wrong OPP?
MR GUY:	On the State OPP and we subsequently receive it
some considerable time down the track. That is a
matter which is in fact common.  I do not know
whether that, in fact, applies in my friend's case or not.
HIS HONOUR:	It seems to be good argument for abolishing the

federation and constituting a unitary State.

MR GUY: Certainly there has been some support for that over

the years, yes.

HIS HONOUR:  Thank you, Mr Guy. That disposes of the

matter.

AT 10.36 AM THE MATTER WAS ADJOURNED SINE DIE

Kolalich 4 3/6/93