Northern Australia Land & Agency Co & Ors v Sheahan

[1996] HCATrans 247

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A3 of 1996

B e t w e e n -

NORTHERN AUSTRALIA LAND & AGENCY CO PTY LTD

First Applicant

DEAN KIVERTON LE POIDEVIN

Second Applicant

GLORIA DAWN LE POIDEVIN

Third Applicant

and

JOHN SHEAHAN

First Respondent

LE POIDEVIN INDUSTRIES PTY LTD (IN LIQUIDATION)

Second Respondent

Application for special leave to appeal

DAWSON J

GAUDRON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 15 AUGUST 1996, AT 11.10 AM

Copyright in the High Court of Australia

________________________

MR J.M. CUDMORE:   If the Court pleases, I appear for the respondents.  (instructed by Ward & Partners)

DAWSON J:   Mr Cudmore, I was just debating whether we should have the applicant called but the Court is in possession of a letter from him indicating that he is in prison.  That is as you understand the position?

MR CUDMORE:   Yes.

DAWSON J:   He is due to be released on 26 August 1996 and, in the circumstances, he does not wish this application to proceed in his absence.  It would seem undesirable to proceed in those circumstances and, as I understand it, your client has been informed of the situation but does not desire to consent to an adjournment.

MR CUDMORE:   That is so, your Honour.  I have taken careful instructions from the Liquidator on that aspect and, of course, your Honours, if circumstances were otherwise the Liquidator would not hesitate if an applicant were embarrassed by his inability to appear or by an applicant’s inability of counsel, for unforeseen reasons, to attend on the hearing of the application, but it is the Liquidator’s position that circumstances of this particular case are not such that the Liquidator should accommodate the request which has been made by Mr Le Poidevin.  It seems, on his own part, but also, according to his letter, in his capacity as counsel for the applicants and there are a number of dilemmas that arise out of that straightaway, if the Court pleases, one of which was the ruling which this Court made in Harradine v The

University of Adelaide where the Court clearly said that a personal applicant cannot, at the same time, appear as counsel.

DAWSON J:   But one way or another, whatever the difficulties, there is a greater difficulty in proceeding without hearing Mr Le Poidevin.  In the circumstances, you are not submitting that we should proceed forthwith, are you?

MR CUDMORE:   Your Honour, we would submit it is an appropriate case, even on the explanation which has been given by Mr Le Poidevin, for the Court to dismiss the application for non-prosecution.

DAWSON J:   I do not think we would be prepare to do that without hearing him, in the circumstances.

MR CUDMORE:   Yes, your Honour. 

DAWSON J:   There were several possibilities:  one was that this Court might exercise a doubtful jurisdiction to issue a gaol order to have him brought here but he points out, as you know, that he has no facilities for preparing his case where he is at the moment.

MR CUDMORE:   Yes.

DAWSON J:   The other possibility is to proceed in his absence and the Court is not, I think, prepared to do that.  In the circumstances, the best thing to do, it would seem, would be to adjourn the case but, obviously, your client wants to bring it to a speedy end - to adjourn it to the Melbourne sittings for the hearing of special leave applications which is in December.  He will be out of prison by then and there is no reason why he cannot appear if he wishes to do so, and the questions which you have raised can be debated then.

MR CUDMORE:   Yes, your Honour.  Given what your Honour has said, there is nothing more usefully that I can put on behalf of the Liquidator.  He is an officer of the court but if the matter can be dealt with in December, there is nothing usefully I can put to the Court as to why the Court should not proceed.

DAWSON J:   Thank you, Mr Cudmore.

KIRBY J:   Might it be prudent for you to get your solicitors to draw to his attention the fact - if you have not already done so - that you would be taking the point on the University of Adelaide Case?

MR CUDMORE:   Yes, your Honour.

KIRBY J:   So that he is aware of that in case that would cause him to arrange different representation for the Company and get another application for an adjournment which would be triply undesirable.

MR CUDMORE:   Yes, your Honour.  We will ensure that that point and the other points we may raise on the hearing of the application will be made known to all of the applicants.

DAWSON J:   Thank you, Mr Cudmore.  This matter will be adjourned to the hearing of special applications in Melbourne in December.

AT 11.16 AM THE MATTER WAS ADJOURNED