O'Halloran v The Queen

[2001] HCATrans 46

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S12 of 2001

B e t w e e n -

JAMES FRANCIS O’HALLORAN

Applicant

and

THE QUEEN

Respondent

Summons for expedition

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 22 FEBRUARY 2001, AT 9.44 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court please, I appear for the applicant on the summons.  (instructed by Director of Public Prosecutions (Commonwealth))

MR C.C. WATERSTREET:   I appear for the respondent on the summons.  (instructed by Holman Webb)

HER HONOUR:   Yes, Mr Game.

MR GAME:   Your Honour, I formally read the affidavit of Isabella Consenza of 16 February 2001.  I take it your Honour has had a chance to read it?

HER HONOUR:   Yes.  I have had an opportunity to read it, yes.

MR WATERSTREET:   It is not opposed.

HER HONOUR:   Is the application opposed?

MR WATERSTREET:   No.

HER HONOUR:   The application is not opposed.  However, would I be unduly suspicious in thinking that there is some notion that one might be able to move listing problems further up the judicial hierarchy?

MR GAME:   No, your Honour, but our position is ‑ ‑ ‑

HER HONOUR:   Well, why not?  Why would I be wrong in thinking that?  Perhaps it arises more starkly in the next matter, but I take it the point of this application is to get an earlier trial than would otherwise be the case if the application for special leave fails?

MR GAME:   No, your Honour.  The point is that this case has been listed for trial twice before.  It has been litigated more or less constantly for the last six or seven years.  Sorry, that is an exaggeration, five years.

HER HONOUR:   So, it can be expedited if you can jump the queue in this Court.  I mean, I take it you could not advance an argument that the application is frivolous, could you?

MR GAME:   I do not suggest that.

HER HONOUR:   No.

MR GAME:   But, your Honour, our position is simply that if there is not to be a grant of special leave then we want to hold onto our trial date.

HER HONOUR:   Exactly.  That is what I said.  Would I be wrong in assuming that listing problems are just being moved - that this application is brought so that what might otherwise be listing problems become the listing problems of this Court and not of the trial courts?  Because we have, Mr Game, as you well know, a very considerable number of special leave applications, more than the Court can reasonably accommodate even, within the - well, more than the Court can accommodate, as you know.   You have seen them.  You have been here on special leave days.

MR GAME:   Yes.  No, I know, your Honour.  I mean, there is a listing process in the Supreme Court when trials are listed.

HER HONOUR:   Yes, and there is a listing process here, which you wish to jump ahead of.

MR GAME:   Well, our opponents are not exactly racing along with getting their application on.  They have not put on their summary of argument.  They have had an extension of time, which they have not complied with.

HER HONOUR:   You do not make an argument, however, that they are deliberately delaying?

MR GAME:   I do not make an argument that they are deliberately delaying, but we are entitled, as we would see it, to have the application dealt with within ‑ ‑ ‑

HER HONOUR:   You are entitled to have it dealt with according to the rules and in accordance with the Court’s normal listing procedures.  Those normal listing procedures, as I think appears in the affidavit, would see this matter coming on in the second half of this year.

MR GAME:   Yes.  What that means in this particular case is, your Honour, that this case will have been listed for - it means that this case will not be heard this year.

HER HONOUR:   Exactly.

MR GAME:   This particular case has an extraordinary history by any ‑ ‑ ‑

HER HONOUR:   But when you say it will not be heard this year, I mean, is there so little flexibility in the listing systems of the Supreme Court - I take it this is a Supreme Court trial?

MR GAME:   Yes, your Honour.

HER HONOUR:   That it is perceived that there is more flexibility in the listing procedures of this Court?

MR GAME:   Well, I cannot answer that question, your Honour.  We go along and ask for a trial date and the judge gives us a trial date.

HER HONOUR:   Yes, you ask for the trial date.  Now you want to keep it.  Having got a trial date out of the Supreme Court, you come here and say, “Now, expedite it.  Give us a hearing date earlier than we would have had,” and one that is going to have other people shut out of the list - will possibly have other people shut out of the list.

MR GAME:   That is all very well, your Honour, but, look, at the same time the applicant says to us, “Look, my case is so stale.  Why should I be put on trial at all?”  We say, “Well, we are trying to get your case on as quickly as we possibly can.”

HER HONOUR:   You are trying to get an advantage that you would not otherwise have, a listing advantage of the special leave application.

MR GAME:   Well, that is one way of looking at it, your Honour, but ‑ ‑ ‑

HER HONOUR:   And you are trying to get it because you have already got a date in the Supreme Court and if I were a suspicious person I would think that you may have gone and asked for that date so that you could then get the special leave application expedited.

MR GAME:   Well, we come up in a list and Justice Barr conducts the lists and he gives dates for hearing.

HER HONOUR:   And was he informed that there was a special leave application?

MR GAME:   He knew there was a special leave application.  I assume he knew that there was - he did not know?  It was set down before.  I am told it was set down before a special leave application was ‑ ‑ ‑

HER HONOUR:   Did somebody not think in those circumstances to go to Justice Barr and say, “A special leave application has been filed.  We don’t suggest it is a frivolous application”?

MR GAME:   I do not know, but I tell you this, your Honour, in another case called Hannes, where we did know a special leave application had been

lodged and a date was to be set in earlier in the year, we asked for a date to be set later in the year so that the matter could be dealt in the orderly course in this Court.  So if you say what we are doing - and that is another case in which I ‑ ‑ ‑

HER HONOUR:   And what happened in that case?

MR GAME:   They have set it down for special leave on 22 June and they have set the trial down for hearing in October, so if he gets special leave then the trial can be vacated and we specifically asked for the trial to be set later so that the special leave ‑ ‑ ‑

HER HONOUR:   But that course was not followed in this case?

MR GAME:   No.  Well, I am told that the reason is there was no special leave application at the time that it was listed before Justice Barr.  So what exactly ‑ ‑ ‑

HER HONOUR:   But could it not have been re-listed and could his Honour not have been informed of that?

MR GAME:   Well, our opponents have not asked for that hearing to be vacated.  They have made no application.  I mean, rhetorically speaking ‑ ‑ ‑

HER HONOUR:   I mean, you cannot blame - I mean, surely in matters like this there is no reason for either side to put all the responsibility on the other and what I am concerned about is the possibility of a practice developing - and, as I said, it perhaps appears more clearly in the next matter - whereby perceived listing problems are just moved up here, so that this Court then has greater listing problems than is presently the case.  Now, as it happens, without too much difficulty you can be accommodated on Tuesday, 10 April at or about 2.00 pm.

MR GAME:   Thank you, your Honour.

HER HONOUR:   An order will be made for the matter to be listed then.  That may necessitate the DPP taking some active role though in the preparation of application books that would not otherwise be the case.  Mr Waterstreet, when can your ‑ ‑ ‑

MR WATERSTREET:   Monday.

HER HONOUR:   You can put on your ‑ ‑ ‑

MR WATERSTREET:   Yes.  It is my personal problem.  I have not fine tuned my summary of argument and draft grounds, but I can get them - they

are in the computer.  The computer is not in my chambers.  It is sick.  But I can do it by Monday, undertake to do it ‑ ‑ ‑

HER HONOUR:   Well, I have heard people say that ‑ ‑ ‑

MR WATERSTREET:   Sometimes.

HER HONOUR:   ‑ ‑ ‑ yes - and if they are dependent on computers sometimes things go wrong.  I will give you until Wednesday, 21 February.

MR WATERSTREET:   Thank you.

HER HONOUR:   Sorry, Wednesday - I am told I am a week out - 28 February, yes, thank you.

MR WATERSTREET:   Yes, thank you.

HER HONOUR:   Mr Game, can you have your reply on within a week of that date?

MR GAME:   Would it be possible to have - there are lots of grounds.  I wonder whether 14 days might be ‑ ‑ ‑

HER HONOUR:   It is your application.

MR GAME:   It is my application but ‑ ‑ ‑

HER HONOUR:   Yes, by Wednesday, 14 March.

MR GAME:   Thank you, your Honour.

HER HONOUR:   Do the rules provide for a reply?  They do, do they not?  Could you have a reply on by 28 March?

MR WATERSTREET:   Yes.

HER HONOUR:   That leaves only - you see the difficulty is now - I am sorry, that will not do.

MR GAME:   Well, we can get our submissions on by the Friday ‑ ‑ ‑

HER HONOUR:   Can I put yours Monday, 19 March and reply by 26 March ‑ ‑ ‑

MR GAME:   You have moved me back further still.  You gave me 14 March.  Now you have given me five more days.

HER HONOUR:   I am sorry.

MR GAME:   You mean Monday, 12 March.

HER HONOUR:   12 March, and reply by Monday, 19 March, but the books must be filed not later than 26 March because of Court listings and movements and the need for books to be distributed.  Can that be done within seven days?  I have no idea of the logistics.

MR GAME:   Yes, it can, I think.

HER HONOUR:   And is the DPP, as the price for expedition, prepared to assume responsibility for having the books prepared?

MR GAME:   I will just - yes, your Honour.

HER HONOUR:   Very well.  An order will be made expediting the hearing of the special leave application.  The special leave application will be listed for hearing at 2.00 pm on Tuesday, 10 April 2001 in Sydney.

Do I need to give further directions with respect to the compliance dates or are they clear?  They are not clear to me because I have confused myself.

MR GAME:   I would just foreshadow this, your Honour.  We will foreshadow in our response that if special leave is granted we will put on a notice of contention, but that is a matter that we will simply address by way of response in our written submissions on the summary of argument.

HER HONOUR:   Yes.

MR GAME:   That concerns two of the other constitutional heads of power that were ‑ ‑ ‑

HER HONOUR:   You look as though you are talking yourself into a grant of special leave in advance.

MR GAME:   No, I am not.  Well, if there is to be a grant of special leave, then we want, obviously, to cancel the trial.

HER HONOUR:   Of course.

MR GAME:   So we are not saying it is frivolous, but we have arguments as to why special leave should not be granted but ‑ ‑ ‑

HER HONOUR:   Yes, very well.  Are you clear about the dates?

MR GAME:   Yes.

HER HONOUR:   Yes, very well.  I do not need to certify for the attendance of counsel or anything like that in this case?

MR GAME:   No, your Honour.

HER HONOUR:   No, thank you. 

AT 9.57 AM THE MATTER WAS CONCLUDED