Pantano v The Queen

[1991] HCATrans 261

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl19 of 1990

B e t w e e n -

NICHOLAS PANTANO

Applicant

and

THE QUEEN

Respondent

Application to remove

solicitor from the record

GAUDRON J

(In Chambers)

Pantano(2) 1 12/9/91

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 12 SEPTEMBER 1991, AT 10.17 AM

Copyright in the High Court of Australia

MR L. LUNGO:  I appear, not for the applicant but on behalf

of Miss Johnson. (instructed by Leigh Johnson,

solicitor)

HER HONOUR:  Yes, Mr Lungo. I take it there is no

appearance for the respondent in the application,

Mr Pantano.

MR LUNGO:  Mr Pantano is the applicant.

HER HONOUR: In form only I think.

MR LUNGO:	Yes, I think that is right.
MRS. KAVANAGH:	I appear for the respondent, the Crown.

(instructed by the Director of Public Prosecutions,

New South Wales)

HER HONOUR:  Thank you. Mr Pantano should be called, I

think.

MR LUNGO:  Your Honour, he is in custody. From the last I

heard he was at Silverwater Detention Centre, so if

he was here I would say that he would be in the

cells.

HER HONOUR: Well he is the only person that has any

interest in this matter, is he not, apart from

Miss Johnson?

MR LUNGO:  Yes, Your Honour.

MR KAVANAGH: That is so, Your Honour, yes.

MR LUNGO: Your Honour, I might indicate that he has been

informed of this matter being on today.

THE DEPUTY REGISTRAR:  No response, Your Honour.

HER HONOUR: Yes, thank you. Well, Mr Kavanagh, did you

have some means of communicating with him or

bringing him here, or - - -

MR KAVANAGH:  The convention, Your Honour, as I understand

it is that the registry is able to issue an order

under section 44 of the Prisons Act. That requires

an order to be signed by a judge of the court. It

is then conveyed to the Governor of the prison by

the registry and that authorizes the prisoner to be

brought to the court.

HER HONOUR:	Yes, thank you.
MR KAVANAGH:	Some years ago it was a function of our office

to do that. It is certainly not the case any

longer with district court and supreme court

Pantano(2) 12/9/91

matters. I am frankly not sure what the practice

is with the High Court, it is an unusual position.

HER HONOUR:  Thank you. Well, Mr Lungo, if you would like

to put your application, and - - -

MR LUNGO:  Yes, Your Honour. Your Honour, if I might tender

an affidavit sworn by Leigh Johnson and dated

27 August 1991?

HER HONOUR:  Yes, thank you. That has not been filed?

MR LUNGO:  No, it has not been. If I could just seek

Your Honour's leave to file it with the Court.

HER HONOUR:  Yes, thank you. Has Mr Kavanagh seen a copy.

MR KAVANAGH:	Yes, I have, Your Honour.
HER HONOUR:	Thank you.

MR LUNGO:  Yes, Your Honour. If I might indicate that the

letter addressed to Mr Pantano was sent to him by

certified mail, and he was also spoken to by either

Miss Johnson, or her clerk, Mr Baltinos and told of

this application today.

HER HONOUR:  What good would that do?

MR LUNGO: Well, Your Honour, my instructions are that he

was spoken to and he agreed to the application, but

I cannot take it any further than that,

Your Honour. I cannot say who spoke to him.

Unfortunately Miss Johnson is in Queensland, in

warmer climes than we have here, on holidays. That

is why she is not here today, Your Honour, and she

has instructed me to appear on her behalf.

HER HONOUR:  Yes. The difficulty with this matter,

Mr Lungo, is that although your service does, in

fact, conform with the rules, it is much to be

doubted whether the rules relating to the removal

of a solicitor from the record contemplated that

the client, who was interested, would be in custody

and unable, himself, one presumes to make any

representations with respect to the matter.

MR LUNGO: Yes, Your Honour. Well, Your Honour, all I can

say is, if Your Honour is minded, perhaps, that the

matter might be adjourned to enable him to be here.

HER HONOUR: Well, again, at this stage, I wonder if that is

necessary, in this sense. An alternative may

simply be to a direction to the Registrar to write

to the prison authorities and indicate whether he

wishes to say anything in opposition to the

application.

Pantano(2) 3 12/9/91

MR LUNGO:  Yes, Your Honour.

HER HONOUR:	Yes.	Can you assist, Mr Kavanagh?
MR KAVANAGH:	No.	I think that is probably the most

practical solution to the problem. It seems to me
that both the Court and ourselves would need to

know what Mr Pantano's intentions for the future

are. It may be that he would wish to retain

additional representation, or he may wish to seek

leave to appear before the Court on his own behalf,

but if something of that nature is not done, then

the matter will just remain in the list unresolved.

HER HONOUR:  Yes. Well, is there any particular urgency

about the matter?

MR LUNGO:  No, Your Honour. I am instructed not.

HER HONOUR:	From your point of view?
MR KAVANAGH:	No, Your Honour.

HER HONOUR: Perhaps I should ask Mr Kavanagh, is there any

obstacle, so far as you know, to Mr Pantano's

communicating in writing with the registry.

MR KAVANAGH:  I would not think so, Your Honour. I

understand he is at Silverwater Prison.	I do not
imagine any obstacle would be put in his	way to
communicating with the High Court.

MR LUNGO:  No, I cannot see any. I am told that he can read

and write, Your Honour, so that solves that first

problem.

HER HONOUR:  Yes, thank you.

I think in that case, Mr Registrar, I will

direct that you write to Mr Pantano, care of

Silverwater Prison, and with a copy to the

Superintendent of that prison, requesting that

Mr Pantano inform the registry whether he would

wish to oppose the application and what course he

would wish to take with respect to the application

for special leave that has been filed on his

behalf.

I will stand the matter over to a date after

the October sittings of the Court in Canberra. I

will adjourn the matter until 10 October, and I

think that is all I can really do. You may be able

to communicate with the registry to see if anything

transpires in the meantime.

Pantano(2) 12/9/91

We will adjourn the matter until 10 October.

AT 10.25 AM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 10 OCTOBER 1991

Pantano(2) 12/9/91