Moloney & Anor v New Zealand

[2006] HCATrans 568

[2006] HCATrans 568

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S348 of 2006

B e t w e e n -

RODGER WILLIAM MOLONEY

First Applicant

RAYMOND JOHN GARCHOW

Second Applicant

and

NEW ZEALAND

Respondent

Summons for expedition and bail

GLEESON CJ

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 OCTOBER 2006, AT 10.01 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for the applicants with MR J.C. SHELLER.  (instructed by Greg Walsh & Co)

MS W.J. ABRAHAM, QC:   May it please the Court, I appear with my learned friend, MR I.D. BOURKE, for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

HIS HONOUR:   I just want to find the applications for special leave, Mr Game.  Are there two or one?

MR GAME:   There should be two, your Honour – I am sorry, I am told there is just one.  It was a single judgment dealing with both.

HIS HONOUR:   Could you just for the transcript identify, by reference to the deponents and dates, the affidavits you rely on.

MR GAME:   Yes, your Honour.  There are two affidavits.  One is sworn on 9 October 2006 of Gregory Alexander Walsh, I read that affidavit, and one is the same deponent, 12 October 2006, and I read that affidavit.

HIS HONOUR:   Is there any objection to those, Ms Abraham?

MS ABRAHAM:   No, your Honour.

HIS HONOUR:   I have read those affidavits.

MR GAME:   Thank you, your Honour.

HIS HONOUR:   Now, there is an application for an expedited hearing of the special leave application.

MR GAME:   Yes, your Honour.

HIS HONOUR:   What is your attitude to that, Ms Abraham?

MS ABRAHAM:   In our submission, it is appropriate that the matter be expedited.

HIS HONOUR:   All right.  Well, we can probably shorten the rest of the proceedings, Mr Game.  I will make an order for the expedited hearing of the application for special leave and it will be heard at 2.15 on Monday in Sydney.

MR GAME:   This coming Monday?

HIS HONOUR:   Yes.

MR GAME:   Your Honour, that is fine.

HIS HONOUR:   I will make an order dispensing with compliance with the Rules.  What we will need for the special leave application will be the judgment of Justice Madgwick, the judgment of the Full Court of the Federal Court and the submissions that you have made in support of your bail application and your expedition application which deal with, to some extent, the merits of the proposed appeal.

MR GAME:   Your Honour has the judgments.  Should we file them again?

HIS HONOUR:   No, I have read the judgment of the Full Court of the Federal Court but I do not seem to have access to the judgment of Justice Madgwick.  The Registry will make sufficient copies of the judgments for the purposes of the three members of the Court who will sit on the application on Monday afternoon, so that I do not think there will be anything for you to do except make available to the Registry the judgment of Justice Madgwick.

MR GAME:   Yes.  Could I ask, would your Honour tolerate it if we produced a short – I mean, like an old‑style outline on one page of sort of five or six basic points.

HIS HONOUR:   The parties can please themselves what they do about written outlines of argument and if you do produce such a document, if you can get it to the Registry when you prepare it, that will be of assistance, because Justices Gummow, Heydon and I will be sitting on the special leave application.  We will need to read the judgments of Justice Madgwick and of the Full Court of the Federal Court and any further written materials that you want to make, but there is no need for any application books to be prepared.

MR GAME:   If your Honour pleases.  We will proceed in that manner but could I say this, that the document, which will be a relatively short one, I would not anticipate we could get it to the Court before Monday morning.  Is that ‑ ‑ ‑

HIS HONOUR:   That is all right, or you can hand it up before you start your argument on Monday afternoon, if you want to.  As it seems to me, the appropriate course is just to stand the bail matter over until Monday afternoon and whatever is the outcome, one way or the other, of the special leave application will have an important effect on the bail.

MR GAME:   Of course, your Honour.  I do not think it matters, but there is an outstanding issue of construction as to whether or not a stay is automatic or required to be given by the ‑ ‑ ‑

HIS HONOUR:   As I understand the attitude of New Zealand, they are prepared to proceed on the basis that there is a stay.

MS ABRAHAM:   Absolutely.

MR GAME:   Thank you.

HIS HONOUR:   All right.  We will see you on Monday afternoon.  The costs of today’s proceedings will be costs in the application for special leave to appeal.

AT 10.06 AM THE MATTER WAS CONCLUDED