Kuster v The Queen

[2009] HCATrans 231

[2009] HCATrans 231

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M6 of 2009

B e t w e e n -

MARK ANDREW KUSTER

Applicant

and

THE QUEEN

Respondent

Summons

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 16 SEPTEMBER 2009, AT 10.14 AM

Copyright in the High Court of Australia

MR A.M. LEWIN:   May it please, your Honour, I appear on behalf of the applicant.  (instructed by C Marshall & Associates)

MR J.C. McARDLE, QC:   I appear for the respondent, if the Court pleases.  (instructed by Solicitor for Public Prosecutions)

HER HONOUR:   I have read the affidavit of Mr Adrian Lewin dated 23 July 2009 in support of the application for leave to withdraw as solicitor.  Yes, Mr Lewin.

MR LEWIN:   Your Honour, we do seek to withdraw pursuant to rule 6.02.5(c) and for that purpose we require the leave of the Court. The circumstances of this application are set out in the affidavit and we are in a position where we cannot proceed with the High Court application and as a result we do seek that leave.

HER HONOUR:   Has any new representation been sorted out?

MR LEWIN:   As far as I am aware, no.  We are still the solicitors on the record, your Honour.  We did refer Mr Kuster to either PILCH or to the Law Institute of Victoria to obtain details of ultimate representation to possibly conduct the matter on a pro bono basis.  I am not sure if Mr Kuster has availed himself of that information, whether he has utilised it or not.  However, at this stage we have provided him with all the documentation and he is able to engage ultimate representation should he choose and should he be able to locate such representation.

HER HONOUR:   Yes, thank you.  Yes, Mr McArdle.

MR McARDLE:   Your Honour, we say nothing about the application.

HER HONOUR:   No.

MR McARDLE:   Unless I am told to mind my own business I am quite happy to make some inquiries of people who practise in this jurisdiction to see if someone is willing to look after this case on a pro bono ‑ ‑ ‑

HER HONOUR:   Yes, that might be helpful, Mr McArdle.

MR McARDLE:   Yes.  Your Honour, would I be in a position to tell those persons that this case would be on in the December sittings?  They might have other cases on that day.

HER HONOUR:   Yes.  I could not be absolutely certain about that.  Something is going to turn, of course, on the outcome of the inquiries to be made of PILCH and any other instrumentalities which may provide pro bono assistance because, as you know, we have a separate strand for dealing with unrepresented applicants.

MR McARDLE:   The case would be done on the papers, would it, otherwise it would be unrepresented.  Yes.

HER HONOUR:   Yes.

MR McARDLE:   I do not think there is much that needs to be done to bring it before the Court, except perhaps the preparation of the application book.  I think everything else has been looked after.  But in any event I will make the inquiries, your Honour, and see if I can do some good.

HER HONOUR:   Yes.  I mean, one way or another it would be dealt with in a reasonably short compass of time.  That is the best I could say, not being certain about precisely how the matter will be handled.

MR McARDLE:   Yes, very well, your Honour.  Thank you.

HER HONOUR:   Thank you, Mr McArdle.

The orders I will make are:

1.Pursuant to rule 6.02.5(c) of the High Court Rules 2004 I grant leave to the firm of C Marshall & Associates to withdraw as solicitor for the applicant, Mark Andrew Kuster, in the matter of his application for special leave to appeal to this Court from the whole of the judgment of the Court of Appeal of the Supreme Court of Victoria given on 11 December 2008.

2.Extend the deemed abandonment date for the application to 15 October 2009.

3.C Marshall & Associates to serve a copy of this order on the applicant and on the respondent.

Nothing further?

MR McARDLE:   No, thank you.  If the Court pleases.

MR LEWIN:   No, your Honour.  As your Honour pleases.

AT 10.18 AM THE MATTER WAS ADJOURNED