Little, J.D. v Registrar of the High Court of Australia

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JUDGMENT NO. .... sa.s/.Zc~,

IN THE FEDERAL COURT OF AUSTRALIA )
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VICTORIA DISTRICT REGISTRY 1 No. VG147 of 1990
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GENERAL DIVISION

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BETWEEN: JOHN DAVID LITTLE
Applicant

AND : REGISTRAR OF THE HIGH COURT
OF AUSTRALIA
Respondent

REASONS FOR JUDGMENT

LOCKHART J.
The respondent has filed two affidavits in support of his case, one by Ronald Stephen Huttner, a barrister and solicitor of the Supreme Court of Victoria, and the other by Robert John Albert Cornwall, also a barrister and solicitor of the Supreme Court of Victoria and the secretary and executive director of the Law Institute of Victoria. The affidavit of M r . Huttner was

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is and has been for some weeks abroad. Mr. Cornwall is engaged

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in some activities other than being in this Court this morning

and his availability and whereabouts as to this afternoon are not

at this stage known. Order 14 rule 9 of the Court's rules deals

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sworn on 29 May and filed on 25 June. That of Mr. Cornwall was
sworn on 2 July 1990.
The only notice given to the deponents to attend for cross-
examination was given orally to the respondent's solicitor by the
applicant himself about 9.15 or 9.30 this morning. Mr. Huttner

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with the giving of notices to witnesses to attend for :cross- i '

examination. It does not impose a time within which the requirement to attend must be given but plainly it must be within

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a reasonable time in all the circumstances of the case. A notice
given at 9.15 or 9.30, whichever it be, on the morning of a !

hearing to commence at 10.15 when the hearing date has been known for some weeks is obviously not a notice within the letter or spirit of the rule. So in my view no notice to attend has been given.

The ultimate significance of this is, of course, that where the attendance of a person is required and he does not attend then his af f idavit cannot be used without the leave of the Court. That does not arise in view of my ruling that no notice was given within the meaning of the rule, so both affidavits may be used. I should add that the affidavits deal with formal matters, most
of the material of any probative kalue that attaches to them is in the form of the exhibits to the affidavits and they

essentially relate to the history of this matter including other court proceedings. They do not raise matters which on their face would readily admit of cross-examination.

Mr. Little has clearly outlined the three areas on which he
seeks to cross-examine Mr. Cornwall and the one area in which he
sought to cross-examine Mr. Huttner.

The particular matter on which he would have cross-examined Mr. Huttner concerned the circumstances surrounding an application before another Judge of this Court under the
A d m i n i s t r a t i v e D e c i s i o n s ( J u d i c i a l Review) Ac t 1977 concerning

some application with reference to the Migra t ion A c t . Mr. Huttner who appeared in the matter objected to the applicant's appearing on the basis that he had been struck off the Register.

Mr. Little wanted to ask him questions about that and whether he had been, in effect, asked or instructed by the respondent to this proceeding to make the application to the court that Mr. Little not be heard. It seems to me that if those questions had been asked they would plainly have been irrelevant and I would have rejected them.
So far as Mr. Cornwall is concerned, there are three broad
areas in which Mr. Little wishes to cross-examine him. These
are, in the order in which they were put to me not necessarily
of Victoria, which raises substantial funds from fees for the in order of importance. First, whether or not the Law Institute

giving of practising certificates uses those funds for extraneous purposes including advertising, media campaigns and what were called lobbying campaigns. This is irrelevant.

In any event the substance of it appears to have been put already to the Full Court of the Victorian Supreme Court in the
proceedings of L i t t l e v Cornwall [l9891 VR 811.

The second area of cross-examination concerns what was described by Mr. Little as a curious circumstance, namely, a statement by counsel who appeared in that Full Court apbeal to which I have just referred, with reference to certain sections of the Legal Profession Practice Act 1958 (Vic). It was said by Mr. Little that these in some way constituted a fraud. Had those questions been put I would have rejected them as irrelevant, indeed as improper.

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The third matter that Mr. Little sought to explore in cross- examination concerned the respondent's visit to Melbourne at some

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stage when he engaged in conversation with officers of the Law
Institute of Victoria concerning Mr. Little's entitlement to
practice here. There seem to me to be possibly of relevance and
I am prepared to assume for present purposes that they would be I ':
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relevant. However these matters are so peripheral that I doubt , -
if anything could possibly turn in the case upon them. 1 -
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Accordingly in the exercise of my discretion, had a notice to / .
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attend for cross-examination been properly given, I would have
still allowed the affidavit to be used.

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And that is really all I am considering at the moment, but as I say, no notice has been given in any event so the question : I .
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does not strictly arise. If however it is possible that Mr.

Cornwall can be obtained this afternoon for cross-examination v I
then if he presents himself and Mr. Little wishes to ask him
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questions, I can rule on the admissibility of the evidence as the i
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questions are asked in the light of any objections that are taken. But that is not a course that the respondent is required to undertake, that is, he is not bound to obtain the presence of
Mr. Cornwall but if he seeks to do so I can deal with the matter
as it arises.
I certify that this and the
preceding four (4) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart.
Associate
Dated: 27 August 1990

Applicant appeared in person.

Counsel for the Respondent

R.R.S. Tracey and J.E. Mazurkiewicz
Solicitors for the Respondent : Australian Government

Solicitor

Date of Hearing 27 August 1990
Date of Judgment 27 August 1990

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Citations

Little, J.D. v Registrar of the High Court of Australia [1990] FCA 535

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sworn on 29 May and filed on 25 June.	That of Mr. Cornwall was
sworn on 2 July 1990.

with the giving of notices to witnesses to attend for :cross-	i '
examination. It does not impose a time within which the requirement to attend must be given but plainly it must be within	I
i
!. i
I .
a reasonable time in all the circumstances of the case. A notice
given at 9.15 or 9.30, whichever it be, on the morning of a	!
hearing to commence at 10.15 when the hearing date has been known for some weeks is obviously not a notice within the letter or spirit of the rule. So in my view no notice to attend has been given.
The ultimate significance of this is, of course, that where the attendance of a person is required and he does not attend then his af f idavit cannot be used without the leave of the Court. That does not arise in view of my ruling that no notice was given within the meaning of the rule, so both affidavits may be used. I should add that the affidavits deal with formal matters, most
of the material of any probative kalue that attaches to them is	in the form of the exhibits to the affidavits and they
essentially relate to the history of this matter including other court proceedings. They do not raise matters which on their face would readily admit of cross-examination.
Mr. Little has clearly outlined the three areas on which he seeks to cross-examine Mr. Cornwall and the one area in which he sought to cross-examine Mr. Huttner.
The particular matter on which he would have cross-examined Mr. Huttner concerned the circumstances surrounding an application before another Judge of this Court under the
*A d m i n i s t r a t i v e D e c i s i o n s ( J u d i c i a l Review) Ac t* 1977 concerning
some application with reference to the *Migra t ion A c t .* Mr. Huttner who appeared in the matter objected to the applicant's appearing on the basis that he had been struck off the Register.
Mr. Little wanted to ask him questions about that and whether he had been, in effect, asked or instructed by the respondent to this proceeding to make the application to the court that Mr. Little not be heard. It seems to me that if those questions had been asked they would plainly have been irrelevant and I would have rejected them.
So far as Mr. Cornwall is concerned, there are three broad areas in which Mr. Little wishes to cross-examine him. These are, in the order in which they were put to me not necessarily
of Victoria, which raises substantial funds from fees for the	in order of importance. First, whether or not the Law Institute
giving of practising certificates uses those funds for extraneous purposes including advertising, media campaigns and what were called lobbying campaigns. This is irrelevant.
In any event the substance of it appears to have been put already to the Full Court of the Victorian Supreme Court in the
proceedings of *L i t t l e v Cornwall* [l9891 VR 811.
The second area of cross-examination concerns what was described by Mr. Little as a curious circumstance, namely, a statement by counsel who appeared in that Full Court apbeal to which I have just referred, with reference to certain sections of the *Legal Profession Practice Act* 1958 (Vic). It was said by Mr. Little that these in some way constituted a fraud. Had those questions been put I would have rejected them as irrelevant, indeed as improper.	I -
The third matter that Mr. Little sought to explore in cross- examination concerned the respondent's visit to Melbourne at some	L
stage when he engaged in conversation with officers of the Law
Institute of Victoria concerning Mr. Little's entitlement to
practice here. There seem to me to be possibly of relevance and
I am prepared to assume for present purposes that they would be	I ':
I
relevant. However these matters are so peripheral that I doubt	, -
if anything could possibly turn in the case upon them.	1 -
l
Accordingly in the exercise of my discretion, had a notice to	/ .
8 -

Cornwall can be obtained this afternoon for cross-examination	v I
then if he presents himself and Mr. Little wishes to ask him
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questions, I can rule on the admissibility of the evidence as the	i
i
questions are asked in the light of any objections that are taken. But that is not a course that the respondent is required to undertake, that is, he is not bound to obtain the presence of
Mr. Cornwall but if he seeks to do so I can deal with the matter
as it arises.

Counsel for the Respondent	R.R.S. Tracey and J.E. Mazurkiewicz
Solicitors for the Respondent :	Australian Government

Date of Hearing	27 August 1990
Date of Judgment	27 August 1990

[1990] FCA 535

27 Aug 1990