Northern Territory of Aus v GPAO and Ors

[1997] HCATrans 203

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D14 of 1996

B e t w e e n -

NORTHERN TERRITORY OF AUSTRALIA

Applicant

and

G.P.A.O. (Father)

First Respondent

J.A.W. (Mother)

Second Respondent

SEPARATE REPRESENTATIVE

Third Respondent

Application for vacation of hearing date

DAWSON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON TUESDAY, 5 AUGUST 1997, AT 2.27 PM

Copyright in the High Court of Australia

MS V.A. CHAPMAN:   I appear for the first respondent, GPAO, the father.  (instructed by Chapman and Associates Pty Limited)

DAWSON J:   Before you begin, Ms Chapman, I have a certificate from the Deputy Registrar that he has been informed by the Solicitor for the Northern Territory that the applicant does not wish to be represented at the hearing of the first respondent’s application for vacation of the hearing date.  Yes.

MS CHAPMAN   Thank you, your Honour.  I had been informed that that was their position, so I appreciate that.  My application is supported by a short affidavit of myself exhibiting correspondence that I have forwarded to the High Court Registry.  I wonder whether your Honour ‑ ‑ ‑

DAWSON J:   That is an affidavit dated?

MS CHAPMAN   Sworn on 4 August 1997 and filed in the Adelaide Registry of the High Court yesterday.

DAWSON J:   Yes.  That is not a very informative affidavit.

MS CHAPMAN   Your Honour, I just simply outlined the correspondence in that affidavit that went to the Registrar, identifying the difficulty of the first respondent which, in summary, is that whilst the question of costs is not resolved, regrettably, as we outline in that correspondence, that party is simply unable to be represented by Mr Colin McDonald, who is the retained counsel in this matter.  In light of that situation, a request is made for adjournment to enable the discussions between Mr McDonald QC and the Northern Territory to continue.

HIS HONOUR:   Ms Chapman, there has been a lot of time to hold discussions already, has there not?

MS CHAPMAN:   Yes, your Honour.

HIS HONOUR:   And what guarantee is there, if further time is given, that the matter of costs will be resolved?

MS CHAPMAN:   Your Honour, could I indicate this:  the discussion in relation to costs has really only taken over the last few months because of the nature of the position being that, as is outlined in the application of the applicant, you might see that they indicate that they would pay all reasonable costs of the respondent.  The question of what is reasonable has only come into some discussion over the last few months and, in particular, upon presentation of an interim account.  It is on that basis that the discussions have proceeded and attempted to be resolved.  When they had not been resolved by myself, Mr McDonald, as indicated in my correspondence, proposed to take that issue up as he is familiar with the personnel involved in the Northern Territory, being resident there himself and practising.

HIS HONOUR:   He still has 10 days to take it up and surely, something like that, if it is going to be settled at all, can be settled in 10 days.

MS CHAPMAN:   Well, one can only hope so, your Honour.

HIS HONOUR:   It is not a matter of hope, it is a matter of what is reasonably possible.

MS CHAPMAN:   Yes.  I only indicate by way of hope in that if it cannot be resolved then our client’s position - - -

HIS HONOUR:   And if it cannot be resolved, then the matter must go on, must it not, nevertheless?

MS CHAPMAN:   I appreciate that is entirely in your Honour’s discretion.

HIS HONOUR:   You cannot hold the matter up indefinitely whilst you argue about costs, can you?

MS CHAPMAN:   Well, one of the matters which I think is important in this is the efficient operation of the Court and enabling that to occur.  I just, as indicated in the correspondence, outline that the people waiting at the end of this hearing, that is, the substantive case, and the issues that have been raised in the Full Court of the Family Court and the determination that has been made there and the co-operation of the Northern Territory in facilitating the production of the documents which have been the subject of all of this hearing have enabled the substantive case to proceed without difficulty.  So, I say to your Honour, in a circumstance where Australians are waiting for a decision to be made by your Honour’s Court and they are in some way prejudiced or suffer some delay because of that process, then it is very important that the delay is not at all or minimal.  I just indicate in that correspondence that that is not the case - - -

HIS HONOUR:   I am not sure I follow what you are saying, Ms Chapman.  Are you saying that because the determination of this application for special leave to appeal is not going to affect the case which is proceeding elsewhere, some delay does not matter?

MS CHAPMAN   No, not “not matter” at all.  I just indicate to your Honour that if that were the case, then I would expect that it would weigh heavily on your Honour’s mind to ensure that there would be absolutely no delay.  Of course the Northern Territory, the applicant, take the view that it is very important that this legal issue for them is resolved and, of course, in the due process of the Court undertaking and conducting its work and completing it.  All I am saying to your Honour is that there is not some group of Australians or parties to litigation out there that are going to be prejudiced by the delay.  I just ask your Honour to take that into account in considering ‑ ‑ ‑

DAWSON J:   I do take that into account, but the fact of the matter is that these proceedings have been commenced in this Court and they should proceed in an orderly fashion without undue delay as a matter of this Court’s processes.

MS CHAPMAN   I here entirely what your Honour says.

DAWSON J:   What you are putting to me - and I want to understand it - is that some argument has arisen with regard to the provision of the costs of counsel of your choice and that you require an adjournment to pursue that, that is what you put to me.

MS CHAPMAN   Yes.

DAWSON J:   And what I am putting to you is that 10 days should be sufficient to pursue that and there is 10 days now between today and the hearing on the 15th.  It is not something that should involve protracted negotiations, surely.

MS CHAPMAN   It has taken some time to date.  As your Honour can see from my affidavit, I have corresponded with Mr McDonald yesterday, notwithstanding it being a public holiday in the Northern Territory, and he is endeavouring to still resolve the matter.  I cannot answer for how quickly that can resolve.  I hear what your Honour says and if it is your Honour’s determination that the matter proceed, then of course that is to be respected.

DAWSON J:   And if the representation of the first respondent by counsel is not possible because the funds are not there, there is the facility of putting in written argument and no attempt has been made, as I understand it, for written argument to be put in yet, although that is required even though representation by counsel is obtained.  That is right, is it not?

MS CHAPMAN   Yes.  When I say “no attempt”, I confirm to your Honour that no written submission has been lodged, that is correct.

DAWSON J:   Well, if counsel is not obtainable for one reason or another, you have to consider whether you wish to proceed by way of written argument, without oral submissions.

MS CHAPMAN:   Yes, or at all.  In light of your Honour’s comment then, as we understand it, the application is currently listed for written submission determination only and no oral argument in any event?

HIS HONOUR:   Yes, I understand that is the position.

MS CHAPMAN:   Yes, that is the position.

HIS HONOUR:   There is no difficulty in putting in written argument, is there, within the 10 days available?  You are out of time already but there should be no - - -

MS CHAPMAN:   Certainly.  Your Honour, if the matter can be resolved - I can tell your Honour, if the matter I have raised is able to be resolved in the next 10 days, the lodgment of written argument is ready to file.  That is, the document is ready to file.

HIS HONOUR:   Yes.  So that the application for an adjournment is based solely on the fact that negotiations as to the provision of counsel’s costs have not been fruitful so far?

MS CHAPMAN:   Primarily.

HIS HONOUR:   That is what it boils down to.

MS CHAPMAN:   I hear what your Honour says.

HIS HONOUR:   No, that is what your application boils down to, does it not?  If there is something more, you should tell me.

MS CHAPMAN:   Your Honour, there are other matters that I have raised with you.  I think what your Honour is saying to me is they are not matters that your Honour sees as sufficiently weighty to support that adjournment.  But the principal issue - - -

HIS HONOUR:   What other matters are there upon which you rely?

MS CHAPMAN:   They all relate to the non-resolution of the costs argument.

HIS HONOUR:   Yes, I thought so.

MS CHAPMAN:   Yes.

HIS HONOUR:   Very well.  Is there anything else you wish to say?

MS CHAPMAN:   No, your Honour.

HIS HONOUR:   I am afraid I do not regard that as a sufficient reason for vacating the hearing date and therefore I dismiss the application.

MS CHAPMAN:   Thank you.

AT 2.37 PM THE MATTER WAS CONCLUDED