Poole-Blunden & Ors v Gilmore

[2000] HCATrans 347

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A10 of 1999

B e t w e e n -

JOSEPH HARRY WALTER POOLE‑BLUNDEN, LOURDES CALAJATE JONES, HERMAN JOHANNUS JOSEPH FABRICIUS and GOLDEN GALAXY PTY LTD

Applicants

and

HUGH JAMES GILMORE

Respondent

Application for special leave to appeal

GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 9 AUGUST 2000, AT 3.19 AM

Copyright in the High Court of Australia

MS E.M. HOLMES:   May it please the Court, I appear with my friend, MR J. OKS, for the applicant.  (instructed by Jaak Oks)

MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia:   May it please the Court, I appear with my learned friend, MR J.A. POWELL, for the respondent.  (instructed by the Crown Solicitor for the State of South Australia)

GAUDRON J:   Yes, thank you.  Now, we had understood that your client was content to rely on his written submissions.

MS HOLMES:   Your Honour, the situation is this:  I am instructed to seek an adjournment of this matter this morning.  The reason for that is that it was the applicant’s understanding that they would have the opportunity to file short further written submissions on the discrete issue of why, in the applicant’s submission, special leave should be granted despite the fact ‑ ‑ ‑

GAUDRON J:   Now, what opportunity have you not had?  Let us look at this reasonably.  You wrote, did you not – your instructing solicitor, Mr Oks, wrote to the Senior Registrar on 4 August to confirm:

We have been advised that no oral submissions will be made but a further outline of submission is to be filed.

Is that not correct, on 4 August?

MS HOLMES:   Excuse me, your Honour.  That accords with my instructions – my recollection of my instructions, your Honour, yes.

GAUDRON J:   Indeed, the letter – I am sorry, that is the letter from South Australia.  The letter from your solicitor or from Mr Oks, who is at the Bar table, was actually sent on 26 July.

MS HOLMES:   Yes, your Honour.

GAUDRON J:   Well, now, what date is it today?

GUMMOW J:   It is the 9th.

MS HOLMES:   It is 9 August, I think, your Honour.

GAUDRON J:   Well, how many days is that, a fortnight?

MS HOLMES:   Yes.  Your Honour, this arises not from a lack of opportunity, if you like, but from a misunderstanding.  It was the

understanding, on my instructions, that this matter would not be listed in this list and therefore that the applicants in fact had further opportunity.

GAUDRON J:   I do not know where you got that understanding from.  It has been in this list since 14 July, at least.

MS HOLMES:   Yes, your Honour, but, with respect, on my instructions, following the letter from Mr Oks requesting that the applicants have an opportunity for written submissions to be put, it was understood, I am not sure in writing or from telephone conversations, that the matter would not be listed.

GAUDRON J:   We would be minded to give you an opportunity to put the submissions in writing by 10 o’clock tomorrow morning.

MS HOLMES:   Thank you, your Honour.

GAUDRON J:   Do you have any objection to that course, Mr Solicitor?

MR SELWAY:   No, your Honour.

GAUDRON J:   The matter will stand down in the list until 10 o’clock tomorrow and if there are written submissions to be filed or to be relied upon they should be made available to the Court and to Mr Selway not later than 10 o’clock, yes.

GUMMOW J:   And they had better explain why, if leave were granted, there would be an appeal against a judgment, decree, order or sentence within the meaning of section 73 of the Constitution.

MS HOLMES:   Thank you, your Honour.  That is the intention of the submissions.  Thank you.

GUMMOW J:   That is what has got to be faced up to.

GAUDRON J:   Call the next application, please.

AT 3.28 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 10 AUGUST 2000