Lindsey v Comcare

[2005] HCATrans 652

[2005] HCATrans 652

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M114 of 2004

B e t w e e n -

DAVID JAMES LINDSEY (NOW KNOWN AS DAVID JAMES SJOSTROM‑CLEMENS‑LINDSEY)

Applicant

and

COMCARE

Respondent

Office of the Registry
  Melbourne  No M125 of 2004

B e t w e e n -

DAVID JAMES LINDSEY (NOW KNOWN AS DAVID JAMES SJOSTROM‑CLEMENS‑LINDSEY)

Appellant

and

COMCARE

Respondent

Summonses

KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO CANBERRA

ON TUESDAY, 30 AUGUST 2005, AT 4.45 PM

Copyright in the High Court of Australia

__________________

MR D.J. LINDSEY appeared in person.

MR P.J. HANKS:   Your Honour, I appear for the respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   The sound link is not very clear, unfortunately, but one would have thought that could have been checked before I came on.  I apologise to both you, Mr Lindsey, and to you, Mr Hanks, that I am late but the Full Court was sitting until 4.45, so it made it difficult to get away.

MR HANKS:   Your Honour, I trust the sound might have been improved.  Is that any better?

HIS HONOUR:   Not very much, but we will just have to struggle.  I will put my ear trumpet on if need be. 

MR HANKS:   Thank you.

HIS HONOUR:   Now, Mr Lindsey, I have your application and have read the documents that you have filed.  You are relying on an affidavit, is that correct?

MR LINDSEY:   That is correct, your Honour.

HIS HONOUR:   You might just identify the affidavit so that we have that on the record.

MR LINDSEY:   Before your Honour there should be an affidavit dated 7 February 2005.

HIS HONOUR:   Yes, I have that.

MR LINDSEY:   And also an exhibit marked DSCL.000.12, page 1 through to 18.

HIS HONOUR:   The sound is unacceptable.  I am not going to sit here in the High Court of Australia and not hear the parties.  I do not know why this could not have been checked and improved in the time that we were waiting.  You will have to speak up.

MR LINDSEY:   If your Honour pleases, that is the problem.  I cannot speak too loud because I have a throat complaint either due to the smoking or ‑ ‑ ‑

HIS HONOUR:   Either I am going to hear you or I am not.  If I do not hear you, I cannot deal with your case today.

MR LINDSEY:   If your Honour pleases, can you hear me now?

HIS HONOUR:   That is better, yes.  Get as close as you can to that microphone if you would.

MR LINDSEY:   I am going to have to lean forward.  Before your Honour there also should be an exhibit filed as well marked DSCL.000.12, page 1 through to page 18. 

HIS HONOUR:   Yes, I have that document.  Of course, I am not dealing today with your special leave application or your leave application, whichever it may be and I am not dealing today with the general merits of your case.  I am simply dealing with the question of whether or not you should have an open‑ended time within which to file the appeal papers in accordance with the Rules.

MR LINDSEY:   Yes I understand that, your Honour.  The fact of the matter is I am not asking for an open-ended time as such.

HIS HONOUR:   What is the time you are asking for?

MR LINDSEY:   I am not quite sure, your Honour.  Basically, a lot has occurred since 7 February 2005 in relation to many issues.  In summary form, the verbiage contained within my affidavit outlines the reasons as to why I am seeking set orders.  Your Honour can peruse the contents of the affidavit material in silence.

HIS HONOUR:   Yes I have read the affidavit.  I know that you have financial difficulties, and I understand that and am sympathetic to that.  But the fact is that there are two parties in the Court, and neutral justice requires that the Court protects the rights of parties who are sued to have justice as quickly as can be justly arranged.  As far as I am concerned, I would not be minded to provide an open-ended period of delay for you to file the documents.  We have to have some light at the end of the tunnel.

MR LINDSEY:   I understand what you are saying to me, your Honour.  In addition to the verbiage, a commentary is contained within said affidavit.  I seek leave of the Court to add some additional facts also orally, if I may, which have arisen since 7 February 2005 when I made the application.

HIS HONOUR:   Do you have another affidavit setting out these facts?

MR LINDSEY:   No, your Honour.

HIS HONOUR:   You are just going to state them without them being sworn.  That may not be acceptable to Mr Hanks.  It is not as if 7 February is yesterday.  You have had something of the order of six months in which to get yourself prepared for an application of this kind. 

MR LINDSEY:   Yes, I understand that, your Honour, but there have been issues which have arisen.

HIS HONOUR:   Tell me what the issues are briefly in summary and then I will decide, with Mr Hanks’ assistance, as to whether you have to put that in affidavit form.  Mr Hanks cannot just get up and make statements about the facts without giving you any notice, without giving you a document, without giving you warning of what he is going to say and you cannot do that to him, either, or to his client.  Ambush has gone out of fashion.

MR LINDSEY:   I am not here today to ambush Mr Hanks or Comcare.  Basically, what I am going to say to the Court is in relation to some issues which arose.  Your Honour is aware that I was granted leave by his Honour, Mr Justice Gillard ‑ ‑ ‑

HIS HONOUR:   Yes, I saw that.

MR LINDSEY:    ‑ ‑ ‑ to commence an action against Philip Morris tobacco company while Philip Morris tobacco company sought leave of his Honour to set his Honour’s orders aside.  His Honour dismissed their application and Philip Morris tobacco company appealed to the Court of Appeal of the Supreme Court.

HIS HONOUR:   Yes, but what has that to do with getting the documentation in order for the matter that you have initiated in this Court seeking leave, if necessary, to appeal from the dispositions of Justice Hayne?

MR LINDSEY:   The fact of the matter is, your Honour, now that I am aware that there is an appeal hearing on 5 September 2005 and in relation to some other issues which are before the County Court, I have a directions hearing on 2 September 2005, I am only requesting minimal leave to be granted to me, not an open-ended ‑ ‑ ‑

HIS HONOUR:   What is the time that you are seeking, because the registrar said that she would give you a period of leave, but she just would not give you your request for an unspecified interval?

MR LINDSEY:   Well, at the time when I made application and spoke to the Deputy Registrar, I was unsure myself as to what would transpire.  I was aware what may transpire as far as ‑ ‑ ‑

HIS HONOUR:   All right.  Well, now, time has passed on and you are aware now, what is the time that you are asking so that I can consider with Mr Hanks’ submissions making a direction pursuant to rule 41.14 of the High Court Rules for the period within which you must file your application book?

MR LINDSEY:   As I said, your Honour, there is an appeal hearing before the Court of Appeal Supreme Court 5 September 2005. 

HIS HONOUR:   Well, forget the explanations, just tell me what is the time?  Mr Hanks might be agreeable to that.

MR LINDSEY:   Four to six weeks, if that is possible.

HIS HONOUR:   Four to six weeks.  Very well.  Just sit down for a moment.  Mr Hanks?

MR HANKS:   If I might say so, with respect, your Honour, very prescient of you.  We would not oppose a direction in those terms. 

HIS HONOUR:   Yes.

MR HANKS:   Even at the outside period.  We are, of course, anxious that this matter make some progress towards finality.

HIS HONOUR:   Yes, I understand that.

MR LINDSEY:   Thank you, your Honour.

HIS HONOUR:   Well, Mr Lindsey, you have six weeks.

MR LINDSEY:   Thank you, your Honour.

HIS HONOUR:   Very well.  The direction that I give, pursuant to rule 41.14 of the High Court Rules, is that I extend time for a fixed period of six weeks from this day within which the applicant must file the application book for his application for leave to appeal against the orders of Justice Hayne.  The costs of today I will reserve to be costs in the application for leave to appeal.  I understand, Mr Hanks, I do not now have to say anything about counsel?

MR HANKS:   About certifying, your Honour?

HIS HONOUR:   I do not think I have to certify now, is that correct?  Yes, I am told by Registrar Wickham that I do not have to certify.  I do not have to say anything about it.  It is all now caught up in the new, modern Rules. 

MR HANKS:I am grateful to Registrar Wickham.  Thank you, your Honour.

HIS HONOUR:   All I will do is to make that direction and reserve the costs of today to be costs in the application for leave to appeal.  The Court will now adjourn.

AT 4.55 PM THE MATTER WAS CONCLUDED