Lindsey v Department of Defence

[2003] HCATrans 736

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M38 of 2003

B e t w e e n -

DAVID JAMES LINDSEY (ALSO KNOWN AS DAVID JAMES SJOSTROM‑CLEMENTS‑LINDSEY)

Plaintiff

and

THE DEPARTMENT OF DEFENCE OF THE COMMONWEALTH OF AUSTRALIA

Defendant

Chamber summons

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 16 JUNE 2003, AT 10.04 AM

(Continued from 11/6/03)

Copyright in the High Court of Australia

MR D.J. LINDSEY appeared in person. 

MR M.D. WILSON:   If your Honour pleases, I appear on behalf of the defendant.  (instructed by Australian Government Solicitor) 

HIS HONOUR:   Now, Mr Wilson, if the matter were remitted to the County Court, what would the Commonwealth say about the application of the Supreme Court ‑ ‑ ‑

MR WILSON:   Your Honour, they certainly accept that the County Court of Victoria would be the most appropriate jurisdiction to remit this to, but, notwithstanding that, my instructions are that if your Honour did remit it to the County Court in Victoria, or the Supreme Court, for that matter, that the defendant would raise the issue of the plaintiff’s status with the court. 

HIS HONOUR:   I understand that, but would it submit that the order bit? 

MR WILSON:   Yes, your Honour. 

HIS HONOUR:   It would? 

MR WILSON:   It would, your Honour.  I should also inform your Honour that there have been some inquiries made at the Registry in the County Court and I am told that, as a matter of course, because of the order of his Honour Mr Justice Kellam this matter would be thrown up as it is, given Mr Lindsey’s status.  The issue would really be initiated, I suppose, by virtue of procedures in the County Court, anyway.  That being so, your Honour, I am instructed that my client does wish to submit that leave be obtained from the Supreme Court before the matter proceed in the County Court. 

HIS HONOUR:   Well, then, Mr Wilson, the course I would consider adopting is this.  I would stand over the further hearing of this matter to a date with a view to hearing submissions about whether I should state a question for consideration of the Full Court about the question that would arise.  I do not say I will state a question for the consideration of the Full Court, but it would seem to me that there is a constitutional issue which arises. 

It seems to me that the issue is, or at least includes, the section 109 question, whether the order of the Supreme Court of Victoria made under the Supreme Court Act is not pro tanto invalid under section 109, to the extent to which it is inconsistent with the operation that would otherwise be given to section 44 of the Judiciary Act. 

Now, to that end, it is, I think, necessary that I adjourn the matter over so that the parties may consider their position and so that, also, if the applicant defendant forms the view that a constitutional question does arise, suitable notices under 78B of the Judiciary Act can be given.  Further consideration can be given by your side of the record to the question whether it would be appropriate or inappropriate for me to state a case for the opinion of the Full Court and, if it were appropriate to state an opinion, to give consideration to what content that stated case might have.  It would be necessary, it seems to me, to state the facts which give rise to the issue – they are relatively few – and then let us see where we go from there. 

MR WILSON:   Yes, your Honour. 

HIS HONOUR:   Now, as to when I could bring the matter on again, the Court is sitting in Canberra this week, in Brisbane the week following, and we then encounter the July vacation.  Subject to anything that the parties may say, I am minded to stand it over to Monday, 28 July at 9.30 am in Melbourne.  It would, I hope, give the parties sufficient time to consider their position.  Do you have anything to say against my doing that, Mr Wilson? 

MR WILSON:   Not at all, your Honour. 

HIS HONOUR:   Yes.  Now, Mr Lindsey, you have heard what I have to say.  It seems to me that there is a question, or may be a question, about the consequences of my remitting the matter to the County Court.  The question of how to proceed further is one with which I cannot deal today.  If I adjourn the matter over to Monday, 28 July at 9.30 do you have anything to say? 

MR LINDSEY:   My views in relation to section 109 and also to section 51 ‑ I have stated my views in affidavit material which is filed before this Court. So basically, your Honour, I would just be reiterating my thoughts. I have not had a chance to peruse section 44 of the Judiciary Act ‑ ‑ ‑

HIS HONOUR:   Yes.  Do you mind coming in front of the microphone, sorry, Mr Lindsey.

MR LINDSEY:   I apologise, your Honour. 

HIS HONOUR:   The transcribers have to take it down. 

MR LINDSEY:   I have not had a chance to peruse section 44 of the Judiciary Act 1903.

HIS HONOUR:   Yes.  Well, this will give you an opportunity to do that, Mr Lindsey. 

The order I make is that the matter is stood over until Monday, 28 July 2003 at 9.30 am in Melbourne.  I will reserve costs and certify for the attendance of counsel.  Adjourn the Court. 

AT 10.12 AM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 28 JULY 2003