Louis v Wealth of Aus & AnorH2-97) CHH

[1997] HCATrans 310

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H2 of 1997

B e t w e e n -

GRAHAM JAMES LOUIS

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

First Defendant

THE STATE OF TASMANIA

Second Defendant

Application by Second Defendant for leave to file a conditional appearance

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM HOBART BY VIDEO LINK TO CANBERRA

ON MONDAY, 3 NOVEMBER 1997, AT 9.16 AM

Copyright in the High Court of Australia

MR D.J. BUGG, QC:   I appear for the second defendant.  (instructed by the Office of the Director of Public Prosecutions (Tasmania)) 

It is my application for leave to enter a conditional appearance.  I filed an affidavit in support of the application.  Has your Honour had an opportunity to see that?

HIS HONOUR:   Yes, I have read that.  Thank you, Mr Director.

MR BUGG:   Do you wish to hear me further in support of the application, your Honour?

HIS HONOUR:   Two things.  Firstly, what do you say about a condition that you move to set aside the writ or object to jurisdiction within a limited time?

MR BUGG:   I would have no problem at all with that, your Honour.

HIS HONOUR:   Fourteen days?

MR BUGG:   Yes, that would be quite suitable.

HIS HONOUR:   The second is perhaps a question that I am anticipating rather further than I should.  How is the challenge to jurisdiction to be mounted if the Commonwealth is properly a party which has submitted?  That is perhaps a matter that you may not wish to answer or think that is better answered at the point of the motion to set aside.

MR BUGG:   Your Honour, only to this extent and that is that there seems to be some separation between the parties in the way in which the plaintiff pleads paragraph 2 of the statement of claim.  However, in relation to my response on 14 days, there may be some difficulty in obtaining further and better particulars.  We are dealing with a plaintiff in person.  I will certainly, as of today, request further and better particulars of those matters pleaded in paragraphs 2 and 3 of the statement of claim.  If that material is not forthcoming, of course, that may delay the second defendant’s position on a move to strike out or raise the question of jurisdiction.

HIS HONOUR:   That seems to me to perhaps point to the difficulty that why should you have particulars before you move to attack jurisdiction?  My present inclination, I should say, Mr Director, is to give you your 14 days but no longer and leave you then to see where you get to at the end of the 14.

MR BUGG:   A bird in the hand, your Honour; I will not press the point beyond the 14 days.  But, in any event, your Honour, I take your Honour’s point.  The question really only is that it is a very rolled-up particularisation in paragraph 2 but we can take that matter further at a later stage.

HIS HONOUR:   I understand that.  Then if I make an order in these terms:  Upon the second defendant, by its counsel, undertaking to the Court to institute proceedings - shall I say, “on or before 4 pm, 17 November”  ‑ ‑ ‑

MR BUGG:   Yes, thank you, your Honour.

HIS HONOUR:    ‑ ‑ ‑to object to jurisdiction or set aside the writ, there will be leave to the second defendant to enter a conditional appearance.  The costs will be reserved.  Are you content with an order in those terms?

MR BUGG:   I am, yes, your Honour.

HIS HONOUR:   And you proffer the undertaking that I have suggested?

MR BUGG:   Yes.

HIS HONOUR:   Thank you, Mr Director, there will be an order in those terms, and I will adjourn.

AT 9.20 AM THE MATER WAS CONCLUDED