Miller v Council of Shire of Livingstone

[2003] HCATrans 318

[2003] HCATrans 318

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B13 of 2003

B e t w e e n -

BENJAMIN KEITH MILLER

Applicant

and

COUNCIL OF THE SHIRE OF LIVINGSTONE

First Respondent

STATE OF QUEENSLAND

Second Respondent

Application for expedition

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 18 AUGUST 2003, AT 11.03 AM

Copyright in the High Court of Australia

MR J.F. CURRAN:   I appear for the applicant.  (instructed by Robert Harris & Co)

MR R.J. DOUGLAS, SC:   If it please the Court, I appear for the first respondent.  (instructed by Barry & Nilsson)

MR A.J. SHAH:   If your Honour pleases, I appear for the second respondent, the State of Queensland.  (instructed by Crown Solicitor for the State of Queensland)

HIS HONOUR:   I have read the papers, Mr Curran.  One of the difficulties is that the lists are very crowded, but I could do something for you, I think, on 14 November, which would be a very considerable advance on what you might otherwise expect.  Normally this would not come on until Brisbane next year in June.

MR CURRAN:   Yes, your Honour.  We had tried to get it on in Brisbane this year but we were told we had no chance and we were told there was a possibility we might be able to slot in on 12 September.

HIS HONOUR:   There is a possibility of that.  There is another application in the list and I think there is only room for one matter on 12 September.  What I think I might do is stand your matter down for a few minutes.  You other gentlemen do not have any objection to expedition, I do not think, do you?

MR SHAH:   No, we do not, your Honour.

MR DOUGLAS:   I do not, your Honour.  It is really a matter for the Court, if your Honour pleases.

HIS HONOUR:   Mr Curran and you other gentlemen, do you mind waiting and I will call the next matter.

AT 11.05 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.21 AM:

HIS HONOUR:   Mr Curran, can you point to your strongest evidence that might suggest that there would be some significant change in your client’s condition and in the circumstances generally between September and October?  We are talking about two months.

MR CURRAN:   No, it is just more of the same, your Honour.  Can I make an inquiry of your Honour.  My side’s inquiries of the Registrar indicated that 12 September was the next date.  Your Honour said in discussion with the other matter that it was 16 September.

HIS HONOUR:   The Registrar tells me it is the 16^th, Mr Curran.  With some difficulty, there is an opportunity again on 14 November.

MR CURRAN:   Well, I am in your Honour’s hands.

HIS HONOUR:   14 November would represent a very significant acceleration.

MR CURRAN:   It would.  I do not want to become embroiled in the other matter, but I did notice Mr Cooper saying that it was filed on 1 May, whereas my side’s application for special leave was filed on 14 March.  My client does have, in my submission, a very significant point that the whole manner in which this matter has been dealt with by both the primary trial judge and the Court of Appeal involves a failure to weigh up all of the circumstantial evidence to determine whether the onus has been discharged.  That is caught up with the denial of procedural fairness by considering matters that just were not opened up. 

HIS HONOUR:   I thought you failed on the onus point.

MR CURRAN:   Yes, indeed.  We failed on the onus, but our complaint about being denied a fair trial involves the failure both at first instance and on appeal of the courts to weigh up all of the circumstantial evidence and look at it as strands in the cable, as one of the cases says; look at it in its totality and determine whether the onus has been discharged.  I need to go into the argument to go through each of those matters, and I will not do that.

HIS HONOUR:   You need not do that, no.

MR CURRAN:   So your Honour is right in that in two months – I do not want to appear ungrateful.  If we cannot get the September date, we will

grab the November date, but I cannot say that two months is a matter of life and death, your Honour.

HIS HONOUR:   All right.  In view of that, Mr Curran, I am minded to order that your matter be expedited to be heard in Canberra by video link on 14 November next.  As you know, you can appear in person in Canberra if you want to, but it can also be by video link.  I would order that the costs of the application today be costs in the application for special leave.  I certify for counsel.  I do not think there is anything further, is there?

MR CURRAN:   No, there is not.

HIS HONOUR:   Yes, thank you.

AT 11.25 AM THE MATTER WAS CONCLUDED