McClure v Australian Electoral Commission

[2004] HCATrans 155

[2004] HCATrans 155

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M119 of 1998

B e t w e e n -

MALCOLM McCLURE

Applicant

and

THE AUSTRALIAN ELECTORAL COMMISSION

Respondent

Chambers summons

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 5 MAY 2004, AT 10.20 AM

Copyright in the High Court of Australia

MR P.F. AGARDY:   If your Honour pleases, I appear for the respondent, the Australian Electoral Commission.  (instructed by Australian Government Solicitor)

HIS HONOUR:   It is an ex parte application, is it not?

MR AGARDY:   It is an ex parte application, yes, your Honour.

HIS HONOUR:   Applications for orders for oral examination of debtors are, as far as our perhaps limited researches go, a procedure not taken in this Court within living memory.  What I am presently minded to do is to remit so much of the matter now pending in the Court as is constituted by the respondent’s application for such an order – that is, its application by summons of 2 April – to the Federal Court.  They are, it seems to me, a court which has jurisdiction in the matter, even though it is an electoral matter, otherwise I would have been minded to remit it to the Magistrates Court.  Put shortly, the resources of this Court are not infinitely extensible.  It is better that it go elsewhere.  What do you have to say?

MR AGARDY:   My client does not oppose such an order, your Honour.

HIS HONOUR:   Yes.  Then I will make these orders:

1.        Order that so much of the matter pending in this Court as is constituted by the respondent’s application by summons dated 2 April 2004 be remitted to the Federal Court of Australia and that further proceedings in that part of the matter be as directed by that court;

2.        Direct the Registrar to forward to the proper officer of the Federal Court copies of the following documents, namely:

(a)      the petition dated 8 December 1998,

(b)      the order of Justice Hayne of 24 September 1999,

(c)      the certificate of taxation of 21 February 2001,

(d)      the respondent’s summons dated 2 April 2004,

(e)      the affidavit of Vincent Daniel Tavolaro sworn 30 January 2004 and the exhibits thereto,

(f)       the written submissions filed on behalf of the respondent on 4 May 2004 –

I interpolate to say by that I simply mean the fax with the draft order attached.  I think that is all that was sent.

MR AGARDY:   If I could interrupt, your Honour, I am sorry.

HIS HONOUR:   Yes.

MR AGARDY:   I have a revised draft order.  The first draft required just minor amendment.  If I can hand that up.

HIS HONOUR:   Then in lieu of (f) it will be:

the written submissions on behalf of the respondent filed on 5 May 2004,

(g)      the transcript of today’s hearing;

3.        Order that the costs of the application in this Court be reserved to the Federal Court.

Now, if I make orders in those terms, do you want to be heard against them?

MR AGARDY:   No, your Honour.

HIS HONOUR:   There will be orders in those terms.

MR AGARDY:   Would your Honour certify for counsel for today?

HIS HONOUR:   Yes, I should.

4.        Certify for the attendance of counsel.

Adjourn the Court.

AT 10.26 AM THE MATTER WAS CONCLUDED