McKinnon v Commonwealth of Australia

[2000] FCA 936

FEDERAL COURT OF AUSTRALIA

McKinnon v Commonwealth of Australia [2000] FCA 936

GRANT McKINNON v

COMMONWEALTH OF AUSTRALIA
STATE OF NEW SOUTH WALES
MARTIN McCLEAN
KERR AUSTRALIA PTY LTD (ACN 003 929 100)
AND OTHERS

NG 518 of 1996

HILL J
5 JULY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 518 OF 1996

BETWEEN:

GRANT McKINNON
Applicant

AND:

COMMONWEALTH OF AUSTRALIA
First Respondent

STATE OF NEW SOUTH WALES
Second Respondent

MARTIN McCLEAN
Third Respondent

KERR AUSTRALIA PTY LTD
(ACN 003 929 100)
Fourth Respondent

OTHERS
Fifth to Eleventh Respondents

JUDGE:

HILL J

DATE OF ORDER:

5 JULY 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 518 OF 1996

BETWEEN:

GRANT McKINNON
Applicant

AND:

COMMONWEALTH OF AUSTRALIA
First Respondent

STATE OF NEW SOUTH WALES
Second Respondent

MARTIN McCLEAN
Third Respondent

KERR AUSTRALIA PTY LTD
(ACN 003 929 100)
Fourth Respondent

OTHERS
Fifth to Eleventh Respondents

JUDGE:

HILL J

DATE:

5 JULY 2000

PLACE:

SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant, Mr McKinnon, has applied to me to vary orders that I made in March of this year, inter alia, setting down his application for hearing commencing on 16 October 2000 and extending time to file affidavits in his case as well, of course, as extending time for the respondents to file affidavits in reply.  I note that on that occasion I gave liberty to apply on one week’s notice and that liberty to apply still exists.  The present proceedings commenced some time in June of 1996. 

2. At various times Mr McKinnon has been represented by solicitors, at various time he has appeared on his own.  It seems that at some times at least he has had legal aid although that has now been denied to him.

3. Without a detailed perusal of the various records of listing commencing in 1996 I am unable quickly to locate the first order made in respect of the filing of affidavit evidence by Mr McKinnon.  It was at least before 1998 for on 6 February 1998 I extended the time for filing of that affidavit evidence until 13 February 1998, ordering that no evidence could thereafter be read without the leave of the judge who would hear the matter.  I made consequential orders with respect to the filing by the respondents of their affidavit evidence on that occasion.  It was some time shortly after that date that Mr McKinnon espoused the view that he was not required to attend for medical examinations of his state of mind which led ultimately to an interlocutory hearing and an appeal to the Full Court. 

4. On 15 May I extended the time for the respondents to file their evidence.  This presumably was on the basis that Mr McKinnon’s evidence by then was all lodged. 

5. Various of the directions hearings that proceeded through 1997 were concerned with adjournments on Mr McKinnon’s part because of legal aid applications.  So, for example, on 19 August, I directed him to keep the legal advisers of the respondents advised of the progress on his legal aid application.  I do not in these reasons seek to give a full account of the scores of directions hearings which have taken place.  Ultimately, Mr McKinnon was to file by an order made on 31 October 1997 expert evidence supporting his claim to have been injured by 31 January 1998 and consequential orders were made in respect of expert evidence of the respondents on that day and the matter was stood over until 8 April 1998. 

6. Perhaps for present purposes it suffices to move to the year 2000, when at the 40th direction hearing, I agreed again to extend the time for Mr McKinnon to file and serve his affidavits until 30 June with consequential orders in respect of the affidavits of the respondents.  It was on that day, when indeed Mr McKinnon was represented, that I set the matter down for hearing.

7. It seems that Mr McKinnon has now been refused legal aid.  He is again unrepresented.  He asks me to review the decision of the New South Wales Legal Aid Commission.  I have told him that I have no jurisdiction to do so.  Any application he seeks to make to the Supreme Court if such an application is available to him is a matter for him. 

8. He now seeks that I vacate the hearing of his application (it is set down for some six weeks) and allow him unlimited time.  He refuses to stipulate the time he would need for the filing of evidence. 

9. At some point of time, this case has to proceed to hearing.  At some point of time the interests of the respondents who have so far waited some four years for their day in court must be taken into account.

10. I should say also that Mr McKinnon seeks that I restrain the entire GST collection in Australia because he has to pay GST on medical evidence that he desires to adduce.  I would not do that even if I thought that there was some ultimate argument that he might succeed on a constitutional argument.  I have suggested that should he wish to challenge the constitutional validity of the legislation that is a matter for him and he should do so in the appropriate place, namely the High Court of Australia, rather than by way of motion in the present proceedings.  Any application to declare void the GST legislation has nothing whatsoever to do with the present case and could hardly be dealt with as a motion in it.

11. Accordingly, I would, as I have already foreshadowed, once more extend Mr McKinnon’s time for filing affidavit evidence until 25 August and extend the time for the respondents to file and serve any further evidence upon which they propose to rely until one week before the date of the hearing.  I will of course reserve costs at this stage pending the hearing.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:            5 July 2000

The Applicant appeared in person

Solicitor for the First Respondent:  Australian Government Solicitor

Solicitor for the Second Respondent:  Crown Solicitor for the State of NSW

Solicitor for the Third Respondent:  Abbott Tout

Solicitor for the Fourth Respondent:  Mallesons Stephen Jaques

Date of Hearing:  5 July 2000

Date of Judgment:  5 July 2000