Nicholas v The Commonwealth of Australia & Anor

[2010] HCATrans 282

[2010] HCATrans 282

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S183 of 2010

B e t w e e n -

PAUL NICHOLAS

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

First Defendant

THE CHIEF OF THE DEFENCE FORCE

Second Defendant

Summons for directions

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 26 OCTOBER 2010, AT 9.40 AM

Copyright in the High Court of Australia

MR B. LEVET:   May it please, your Honour, I appear with my learned friend, MS A.B. PETRIE, for the plaintiff.  (instructed by Kinghan & Associates)

MR S.J. GAGELER, SC, Solicitor‑General of the Commonwealth of Australia:   If your Honour pleases, I appear for the first defendant.  (instructed by Australian Government Solicitor)

HER HONOUR:   A submitting appearance has been filed on behalf of the second defendant.  Mr Levet, in your summons for directions, you propose proceeding by way of a statement of agreed facts.  I see that the first defendant proposes a special case which, on the face of it, would seem to have some procedural advantages.

MR LEVET:   Indeed.  We have had the opportunity to look at the response filed on behalf of the first defendant and we would concur with the orders and directions as sought.

HER HONOUR:   Yes.  It seems plainly an appropriate matter to proceed by way of a special case and the directions that the Commonwealth proposes are suitable to you, Mr Levet?

MR LEVET:   Yes, they are, your Honour.

HER HONOUR:   Yes.  Now, I think, Mr Levet, you do require an extension of time for your summons for directions?

MR LEVET:   Yes, your Honour.

HER HONOUR:   Yes.  I am not sure whether it is necessary to formally dispense with the provisions of rule 27.08 insofar as they provide that the special case shall be prepared by the plaintiff.  The contemplation is that the first defendant will serve the proposed special case on the plaintiff on or before 16 November and, indeed, that the first defendant will file the special case on or before 30 November.  To the extent that involves dispensing with the requirements of the rules, I do so.

I also extend the time for the service of the summons for directions to 5 October 2010 and I direct the first defendant to file and serve a defence on or before 16 November 2010.  I direct the first defendant to serve on the plaintiff a proposed special case on or before 16 November 2010.  Any special case that is agreed by the parties is to be filed by the first defendant on or before 30 November 2010.

Now, that just leaves the date to bring the matter back for further directions.  The week beginning 30 November is a week when the Court is sitting in Canberra, as is the following week.  Have the parties given any consideration to a date?

MR LEVET:   Sorry, the week commencing 30 ‑ ‑ ‑

HER HONOUR:   The week commencing 30 November, Mr Levet.  It is the beginning of the November/December sittings of the Court in Canberra, so that week and the following week the Court is in Canberra.

MR LEVET:   Your Honour, I have a criminal matter on 3 and 6 December, but other than that I am in your Honour’s hands.

HER HONOUR:   Would a sensible date be Monday, 13 December?

MR LEVET:   ….., your Honour.

HER HONOUR:   Does that suit you, Mr Solicitor?

MR GAGELER:   Yes, your Honour.

HER HONOUR:   Yes, very well.  I will stand the matter over for – just as I say that, I think in fact that is the first date of the vacation, but I do not know that that causes any difficulties.  None, for you, Mr Solicitor?

MR GAGELER:   No, your Honour.

HER HONOUR:   None for you, Mr Levet?

MR LEVET:   No, your Honour.

HER HONOUR:   I will stand the matter over for further directions before me at 9.30 am on Monday, 13 December 2010.  There is nothing further.  The Court will adjourn.

AT 9.46 AM THE MATTER WAS ADJOURNED