Rochford v Dayes

[1988] HCATrans 268

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl04 of 1987

B e t w e e n -

DENNIS ANTHONY ROCHFORD

\~

Plaintiff

and

EDWARD DAYES

First Defendant

GEORGE ARCHER

Second Defendant

NORTH QUEENSLAND BACON

COMPANY PTY LTD

Third Defendant

WORKERS COMPENSATION BOARD

OF QUEENSLAND

Fourth Defendant

Rochford

Application by defendants to set aside the writ as against third

and fourth defendants and for

remitter

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 10-NOVEMBER 1988; AT 10.28 AM

Copyright in the High Court of Australia

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MR (\.R. ASHBURNER.': May it please Your Honour, I appear for all

four defendants, who are the applicants in the

various summonses. (instructed by Hunt & Hunt)

MR C. JENSEN: May it please Your Honour, I appear

for the plaintiff, the respondent

(instructed by Martin & Melville, through their city

agents, Dupree & Associates)

MR ASHBURNER:	Your Honour, my learned friend, Mr Jensen, has only just got down from Queensland - or at
least I have only just been able to talk to him.
It occurs to me, Your Honour, it might be a matter
which could profitably be discussed between us. The issues are not complex and I would think, Your Honou~, there might be a quite good prospect
that if we aould talk for five minutes that we
might save Your Honour some considerable time.

HER HONOUR: Certainly. There is this difficulty,

Mr Ashburner, which is not a serious difficulty.

Is five minutes a reliable estimate because I have no chambers in this building?

MR ASHBURNER:  I think it is, Your.Honour; we ·have both

looked at the matter.- - -

HER HONOUR:	You think five minutes is - - -
MR ASHBURNER:	I really think it is, Your Honour, because

either we can agree or we will not, or agree on some

partsr.:of it, I do not think we need take, Your Honour,

longer than that.

HER HONOUR:  Thank you. Certainly I will stand the matter

down.

AT 10.30 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.40 AM:

HER HONOUR:	Yes, Mr Ashburner.
MR ASHBURNER:	Your Honour, the discussions have, in part,

borne fruit so that it appears that there is

one substantive issue and one minor procedural

matter which requires the resolution of the Court.

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Rochford

Your Honour, the proceedings are an action for

damages for personal injury alleged by the plaintiff

to have been suffered in two incidents in the

course of his employment, the incidents allegedly
occurring on 13 October 1981 and 6 May 1982.

He alleges he was employed in a meat works and

that he slipped on the floor of the meat works

thereby, on both of those occasions,

suffering personal injury, primarily to the back

but no doubt consequential losses would be claimed,

too.

The first and second defendants are, apparently,

intended to be sued in their capacity as fellow

employees, they being in various supervisory

capacities,.·so it is alleged, and it is said that

they owed a duty of care to the plaintiff which

was breached and caused the damage.

The third defendant, Your Honour, is a company which is sued, apparently, upon the footing

that it is or may have been the employer of the

plaintiff at the relevant time and, for what

it may be worth, Your Honour, I have instructions

on behalf of all defendants to admit that the

company named as third defendant in these proceedings

was indeed the employer at all times relevant

to the two incidents which give rise to the claim

for damages. It is, of course, a corporation

incorporated under the COMPANIES ACT.

The fourth defendant is a corporation.

It is incorporated by virtue of the WORKERS

COMPENSATION ACT of Queensland and if I might

hand up to Your Honour a copy of that Act.

HER HONOUR:  Thank you.

MR ASHBURNER: If I could take Your Honour to section 3A

of the Queensland WORKERS COMPENSATION ACT 1916 as amended, subsection (1) reads:	For the purposes of this Act there shall
be established and thereafter constituted from time to time as prescribed a body corporate under the name and style
"Workers' Compensation Board of Queensland".

and by subsection (2) it has:

perpetural succession and a common seal

and ..... capable in law of suing and being

sued -

and so forth.

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Rochford

The summonses claim several different kinds

of relief, Your Honour. On behalf of the first

and second defendants, the individuals, the primary

relief claimed is simply that the proceedings

be remitted to the Supreme Court of Queensland

and there is a claim for such other relief as

may be appropriate. I think, Your Honour, subject

to the questions as to the third defendant and the fourth defendant being worked out in these proceedings, there will be consent between

the parties to that course. In other words,

subject to the question of the continuing status,

if any, in the proceedings of the company and

the corporation, the body corporate, the parties

are agreed that the convenient and proper course

is to remit the matter to the Supreme Court of

Queensland. There is, Your Honour, a minor difference

as to procedure. As I understand it, the plaintiffls

application is that it be remitted to the Cairns

registry, that being the place of employment,

for the defendants. That is, at this stage,

opposed.

HER HONOUR:  There may be some question of power to do that.

I think that has been adverted to in a number of

these -where the question of remitter to the Federal

Court has, I think, been -·in some such cases, it has been

suggested that there is no power to nominate

a registry.

MR ASHBURNER:  Your Honour, I would certainly submit that

there is no power and, in the alternative, I

would submit that it is really, in the absence

of consent, that the appropriate course as a
matter of discretion is simply to remit it to
the Supreme Court of Queensland simpliciter,

leaving it to that court to determine the appropriate

place for trial. I apprehend, though, that that

minor matter is not one that the parties need

take Your Honour's time up with very substantially.

The application is then made on behalf

of the third defendant and on behalf of the fourth
defendant, that the summons be set aside and
the service of it be set· aside •and the summonses
each claim such further and other order as to

the Court seems fit. The short point that arises,

Your Honour, is whether in a case sought to be brought in this Court under the diversity

jurisdiction can validly proceed at all against

any parties other than natural persons.

Your Honour, the matter is most recently

looked at in this Court in the decision of the

Full Court in CROUCH V COMMISSIONER FOR RAILWAYS,

QUEENSLAND & ANOR, 62 ALR 1, and if I could hand up a photocopy of the judgment, Your Honour.

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Rochford

HER HONOUR:  Thank you.

MR ASHBURNER: It is al'so reported, Your Honour, in

59 ALJR 831 and I regret to say that due to poor
co...,ordination between by instructing solicitor

and I, I have brought the one and he has brought

the photocopy of the other.	So I ask Your Honour
to bear with me in that.	We have two copies

of the Australian Law Journal - may I hand up

that - - -

HER HONOUR:	Which is the more convenient for you?
MR ASHBURNER:	The ALJ, if I may, Your Honour, because

we have two and in that case I can refer to the

same as would be before Your Honour.

HER HONOUR:  Yes, thank you. I am fairly familiar with

the case so perhaps it may be if you would just

direct me to that upon which you rely, I will find it.

MR ASHBURNER: Certainly, Your Honour. If I could take

Your Honour to the joint judgment of Justices Mason,

Wilson, Brennan, Deane and Dawson. After an

~ntroductory paragraph there is the heading:

Is the Commissioner -

that being the G:>mmissioner for Railways -

a "resident" of Queensland?

and in the passage that follows the Court refers

to and approves the line of authorities which .establish

the proposition that fpr th~~purposes of the diversity

jurisdiction of the Court the jurisdiction attaches

only to natural persons. The authorties, Your Honour

include the AUSTRALASIAN TEMPERANCE AND GENERAL

MUTUAL LIFE ASSURANCE SOCIETY LTD V HOWE, 31 CLR 290, in COX V JOURNEAUX, NO 2, 52 CLR 282 and in the

UNION STEAMSHIP COMPANY V FERGUSON, 119 CLR 191. In COX V JOURNEAUX No 2, Your Honour,

the matter came before Mr Justice Dixon, as he

then was, and the order His Honour made was that

the plaintiff elect between either having the

non natural persons dismissed from the suit or

else having the entire suit dismissed and the

plaintiff was given 14 days to make that election

in writing and, failing such an election, the

proceedings were to be dismissed. The Full Court

in that case refused leave to reargue the correctness

of the earlier authorities. In fact, in CROUCH

V COMMISSIONER FOR RAILWAYS, the Court did find

the existence of jurisdiction upon the footing
that the Commissioner for Railways was relevantly

an emination of the Queensland State and that

it was, therefore, a case where a plaintiff was

suing.:the State of Queensland.

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Rochford

I understand from my learned friend that

no attempt is to be made in this case to seek
to argue that the fourth defendant, the Workers

Compenastion Board of Queensland, is relevantly an emination of the State.

HER HONOUR: It says in section 3A(4):

The Board shall represent the Crown.

MR ASHBURNER: Nevertheless, Your Honour, for reasons that

are, no doubt, good and substantial, it is not,

I understand, sought to be argued on behalf of

the plaintiff that the Workers Compensation Board

of Queensland is relevantly Queensland for the

purposes of the jurisdiction of this Court.

So that, in my respectful submission, the

position, then, in which - - -

HER HONOUR:  Mr Ashburner, have you given notices under

section 78B of the JUDICIARY ACT?

MR ASHBURNER:	We have not, Your Honour, no.
HER HONOUR:	Does not this case involve a question ar1s1ng

under the CONSTITUTION? Do you not, by your summons·,

raise the correct interpretation of section 75(iv)

of·the CONSTITUTION?

MR ASHBURNER:	Your Honour, in my submission, the summons does not raise a question of interpretation.
If my learned friend seeks to- in some way distinguish
or perhaps even invite Your Honour to overrule
the Full Court in the authorities to which I
have referred, then that may well raise such
a question.  But the summons itself, in my respectful
submission, does not raise a question of the
interpretation of the CONSTITUTION - that interpretation
being well settled - any more, in my respectful submission, than the mere issue of the writ requires
notices to be given under section 78B. It would,
in my respectful submission, be quite a wrong
approach so to interpret section 78B, to
interpret it widely,so that the mere invoking
of the jurisdiction of this Court under the
CONSTITUTION amounts to a.matter arising under
the CONSTITUTION.

The absurdity, in my respectful submission,

of such a wide interpretation demonstrates that

what rather is required is a purposive interpretation.

HER HONOUR: Although I think your summons does, as a

matter of necessary implication, bring that question

in train.

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Rochford
MR ASHBURNER: If that be correct, Your Honour, it -

HER HONOUR:  By reason of the fact - well, subject to this:

it is accepted, is it, that there is a matter

of diversity jurisdiction as between the plaintiff

and the first two named defendants, now, is it?

Is that accepted?

MR ASHBURNER:  Provided that the plaintiff elects, in the

manner discussed by Mr Justice Dixon in COX V

JOURNEAUX, No 1. But, provided that is so,

Your Honour - I shou1d S?Y there is on •the affidavits

to which, perhaps, we should take Your Honour

shortly, an issue of fact about that.

HER HONOUR:	Yes.
MR ASHBURNER:	But, Your Honour, the submission I would make is that that is an issue of fact which
it is not appropriate to take up the time of
this Court upon and that the effect of an order
remitting the matter to the Supreme Court of
Queensland is to carry that factual issue with
it.
HER HONOUR:	I doubt very much that that is right,

Mr Ashburner. If there is no jurisdiction there

is nothing to remit. Jurisdictional defects

cannot be cured by remitter and I understand

that is not what you are saying, but either

there is a matter before this Court falling within

section 75 or there is not and I can assure you

that if there is a jurisdictional question I

would want to hear a lot of argument as to why

I should remit something carrying the question

of whether or not there ever was a matter properly

instituted with it. I would not ordinarily think

it appropriate for disputed jurisdictional matters

to be remitted.

MR ASHBURNER:  Your Honour, there appears, so far as my

of this Court on what is appropriate in this	researches could take it, to be no decisions
context, so that it is necessary to - - -

HER HONOUR:  Yes. It may well be appropriate to remit

a matter, it having been decided that there is

jurisdiction. But, for my part, I would need

to be persuaded that it was appropriate, there

being a doubt as to whether or not this Court

has jurisdiction,to remit a matter.

MR ASHBURNER:  In my respectful submission, the power of

remitter comes from section 44 of the JUDICIARY

ACT and, -so far as oresently relevant, it requires

that :

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Rochford

Any matter other than a matter to which sub-section (2) applies that is at any

time pending in the High Court, whether

originally commenced in the High Court

or not, or any part of such a matter, may,

upon the application of a party_or of the

High Court's own motion, be remitted by

the High Court.

In my respectful submission, there is a matter

within the meaning of that - - -

HER HONOUR:  There is a matter properly brought within

this Court if there is diversity jurisdiction

or if one or other of the paragraphs of

section 75 are satisfied.

MR ASHBURNER:  Your Honour, in my respectful submission,

there is a matter before the Court when once
there is a contention by the plaintiff,· even. if

disputed by the defendants, that there is

proceedings within the jurisdiction of the Court.

HER HONOUR:  Yes, but that matter, at that stage, is really

only the question of whether or not this Court

has jurisdiction to entertain the matter.

MR ASHBURNER:  Yes, Your Honour, there is certainly that

as a minimum, and if the plaintiff is right,

there is the entire issue.

HER HONOUR:  Mr Ashburner, let me make it quite clear:

the issue must be whether or not it would be

appropriate to exercise the power under section 44

of the JUDICIARY ACT to remit a matter carrying

with it a question as to whether or not the matter was ever properly instituted in this Court because

that_ question would allow for the possibility that that which was remitted would ultimately be decided by the remittee court on the basis

that this Court never had jurisdiction to entertain

the matter. That would be a most unusual consequence,

would it not?

(Continued on page 9)

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Rochford

MR ASHBURNER:	Your Honour, it seems, in my submission, to be one of the matters which is envisaged by
section 45 of· the JUDICIARY ACT which provides
that:

When a cause is removed in whole or

1n part from any court -

I am sorry, Your Honour, I have misread the section and that submission I do not make good.

Your Honour, in one sense there is something

odd and surprising, perhaps, in the Supreme Court

of Queensland being asked to rule upon a question
of the jurisdiction of the High Court but the
reality, in my submission, is that the factual

question is merely one of where, at the time

when the writ was filed, the plaintiff was resident.

HER HONOUR:  It is a very short question.

MR ASHBURNER: It is, Your Honour, but it 1s one, 1n my

respectful submission, which is wholly suitable

to be remitted along with any other issues.

HER HONOUR:	And it is raised by the proceedings.
MR ASHBURNER: It is, Your Honour.	My short submission,

Your Honour, is that if there is jurisdiction

under section 44, as I submit there is, there

dignity of the High Court in having a simple

is nothing inappropriate in exercising it in

such a way as to remit that issue to the Court.

issue of fact of that kind determined in the

Supreme Court of Queensland. And, in my respectful

submission, there is every reason why this Court

ought not to trouble itself with it. It is not

a question of great importance except to ·the

litigants in this case.

HER HONOUR:  They may wel 1 be reason why the Supreme Court

of Queensland might think it should not trouble

itself with such a minor point.

MR ASHBURNER: If it comes to a choice between the supreme

court and the High Court of Australia, my submission

is that for such a simple issue the Queensland

Supreme Court is the appropriate court. So,

Your Honour, for those reasons, what I submit

is that the appropriate course is to put the

plaintiff to the election I have referred to
an~ assuming that the plaintiff elects to have
the company and the corporation dismissed from
the proceedings, then to remit all issues to

the Supreme Court of Queensland.

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Rochford

If Your Honour is against me as to the

interpretation of section 78B then plainly and

unfortunately· the matter has to stand over so

that the ~otice can be given.

HER HONOUR:  I will hear what is said in relation to COX V

JOURNEAUX.

MR ASHBURNER:  And similarly, Your Honour, if Your Honour 1s

against me about the question of the remitter

of the factual issue as to residence to the

Supreme Court of Queensland then it would become

necessary for me to read to Your Honour the various

affidavits.

HER HONOUR:	Yes, thank you.
MR JENSEN::-	Your Honour, I read the affidavit of the

plaintiff, Dennis Anthony Rochford, which was
filed yesterday and I seek leave to read and

file a further affidavit by Mr Rochford sworn

today. --·I· have the original with me.

HER HONOUR:	Yes, any objection to that course?
MR ASHBURNER:	Your Honour, if we are going to read-affidavits

perhaps to keep the matter in its logical sequence

I should read those filed in support of the summonses.

I was seeking to avoid it but if my learned "friend

finds it .necessary perhaps I should do that.

HER HONOUR:  You may take it that I have read the affidavits,

including one sworn by Mr Rochford and filed

on 9 November.

MR ASHBURNER:	Yes, that would be right.
HER HONOUR:	Yes, I have read that one.
MR ASHBURNER:	Your Honour, there is an affidavit I would seek to read in reply to the most recent one
of the plaintiff which has not yet been filed.
I would seek leave to file it in the Court.

HER HONOUR :  Ye s , thank you . The s e a f f i d av i t s have been

exchanged, have they?

MR ASHBURNER:	They have, Your Honour.
MR JENSEN:	Yes.
HER HONOUR :	We 1 1 ,  1 eave i s gr an t e d t o f i 1 e the a f f i d av i t

of Dennis Anthony Rochford sworn on the tenth day of November 1988 and, Mr Jensen, is there

any objection to the affidavit of Stephen John

Ferguson?

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Rochford

MR JENSEN:	No.
HER HONOUR :	I  sh a 1 1 re a d t ho s e a f f i d av i t s i f th a t 1 s

appropriate.

MR JENSEN:  Your Honour, this action was out of time 1n

Queensland. In any event, the first two defendants

are, in my submission, properly joined under

the diversity jurisdiction and although

Mr Lindemann's affidavit creates some doubt on

that issue - Heinz Lindemann - the evidence really

does support a conclusion that the plaintiff,

first and second defendant are respectively

residents of the States of New South Wales, Queensland

and Western Australia and my submission then

is that the addition of further defendants does

not destroy the jurisdiction of the Court. And

that is what the case is all about.

HER HONOUR:	Does that raise a question under the CONSTITUTION?
MR JENSEN:	I would have thought so because it depends - - -
HER HONOUR : .	I  w o u 1 d have though t s o , ye s .

11

. b h d" •

~R JENSEN:  - - - on w at 1s meant. y t e wor h matter 1n

section 75 of the CONSTITUTION and section 78B

of the JUDICIARY ACT does say that:

it is the duty of the court not to proceed -

where that situation arises. If it becomes relevant,

I would direct Your Honour's attention to

subsection (3)(a) where the notice can be taken -

to have been given to an Attorney-General

if ..... in the opinion of the court -

it -

could reasonably be expected-

to have been notified, in effect, or he could

have been reasonably expected to have been notified

through the circumstances. As Your Honour points

out, the "Board" represents the Crown.

HER HONOUR:  Mr Jensen, notice is required to all Attorneys-

General· and, for example, if you look closely

at CROUCH you will see that the Attorneys-General

of three States intervened in those proceedings

by reason of the question that had arisen but .

there were, of course, 78B notices in that matter.

MR JENSEN:  I will perhaps leave that to my learned friend

to deal with.

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Rochford

HER HONOUR: It may be a nice question as to who should

give the notices. He says the question does

not arise on his summons, it arises by reason

of your submission that the third and fourth

defendants may be joined by reason of there being

a matter between residents of different States.

MR JENSEN:  Yes. The summonses filed are rather laconic as

to the grounds but the way one takes them, presumably,

is that there is a jurisdictional challenge to

the Court entertaining the whole action and that,

obviously, in our argument would involve, one would

have thought, section 75 of the CONSTITUTION
so, with respect, it may be a little difficult

for my learned friend not to have anticipated

that I would be referring Your Honour to what

the word 11 matter 11 means under section 75.

HER HONOUR:  I think you are right. Mr Ashburner, is there

anything you wish to say to dissuade me? I think

the constitutional issue does arise but may I

say this: it does seem to me, having got ourselves

to the constitutional issue, that we should deal

with it hypothetically without determining whether

or not the plaintiff is a resident of New South

Wales. I mean, it is really quite absurd, is

it not, to think that we should embark upon a

consideration of these issues if there is no

diversity jurisdiction as between the plaintiff

and the first two defendants? Do you agree?

I mean, I could not really suggest to all the Attorneys that they should come here only to find out 18 months down the track in the Supreme Court of Cairns that there was never a matter here.

MR ASHBURNER: If I may make quite sure I understand

Your Honour's thought accurately, Your Honour

is inclined to the view that there should first

be a trial of the factual issue as to where the

plaintiff was resident at the date of issue of	• ?
wr1 t ..

HER HONOUR: If that is seriously an issue, Mr Ashburner,

I think that should be determined before the Attorneys-General ar~ invited to participate in the further proceeding of this matter.

MR ASHBURNER:	Your Honour, I am instructed that we are content that Your Honour should determine that
factual issue now.  The evidence is before
Your Honour.  I do not wish to cross-examine
the plaintiff on his affidavit so that it would be a fairly shor~ matter to determine.

HER HONOUR:  Yes, I thought so. Do you agree to that course,

Mr Jensen?

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Rochford
MR JENSEN:	Yes, Your Honour.	The evidence is the plaintiff's

oath and suspicion raised by Mr Lindemann. I would submit Your Honour could not find other

than that the plaintiff is and always has been
a resident of New South Wales for these purposes.

Your Honour, as to the joinder of the corporate

and fourth defendant, I am largely relying upon

the decision in McCAULEY V HAMILTON ISLAND ENTERPRISES.

I have the volume here, it could be handed up.

HER HONOUR:	Yes, thank you.
MR JENSEN:	Your Honour, that was a case where there were two corporate defendants and a third defendant,
the BARRIER REEF MARINE PARK AUTHORITY which
represented the Commonwealth and one might be MARINE PARK AUTHORITY was somewhat colourable forgiven for thinking that the joinder of the
in the circumstances and the claim was attacked
by the corporate defendants for that reason.
The passage I am relying upon is the last paragraph
on page 236, the first column, which, in my submission, is in pari materia with this case where
His Honour Mr Justice Mason says:

I would only add that if this Court

has jurisdiction in the plaintiff's claim

against the Authority, it also has jurisdiction

in relation to the claim against the first

and second defendants. This is so because

s. 75(iii) of the CONSTITUTION confers on

this Court original jurisdiction in the

whole matter in which a person being sued on behalf of the Commonwealth is a party,

not merely jurisdiction vis-a-vis that person.

His Honour refers to authority. That is the

very point involved in this case, whether "matter"

is sufficiently wide to make, as part of the

justiciable controversy, the roles of corporate

defendants. In CROUCH V THE COMMISSIONER -

HER HONOUR:	Mr Jensen, are you proceeding now to argue the merits of this or are you persuading me that
there is a constitutional issue?
MR JENSEN:	Your Honour, section 78B says that Your Honour

can continue to hear evidence in argument so,

perhaps, at this stage -

HER HONOUR:  I do not propose - if there is a constitutional

issue,.I would not propose to do that.

MR JENSEN:  Perhaps I am simply laying out what precisely

the issues are and that is in fairly short compass.

SlT3/5/ND	13	10/11/88
Rochford

Your Honour, now or later, I would be relying upon what was said at page 37 in CROUCH and I

will not read the passage but it is made quite

clear on that page that "matter" is the widest

word used to denote controversies which might

come before a court of justice and, really, connotes the substance and subject-matter of what is required to be determined. It is much wider than legal

proceeding or cause.

HER HONOUR:	I think, Mr Jensen, it will be necessary to give notices under 78B.
MR JENSEN:	There is only one other possibility. Unless

Your Honour was able to see Your Honour's way

clear to deciding the matter purely in terms

of section 32 of the JUDICIARY ACT, that provision

HER HONOUR:  That may raise the same question, though,

may it not?

MR JENSEN:	Yes.
HER HONOUR:	That is the ancillary relief prov1s1on, 1s

it?

MR JENSEN: It is the judicature-type provision that states

that the Court is to give all relief to the intent
that all matters in controversy can be adjudicated

upon without multiplicity of proceedings. If

the case can be disposed of under that section

it is not then a matter where there is controversy

under section 75 of the CONSTITUTION. I would

not be prepared to abandon my argument under

the CONSTITUTION, howeve~,I must say.

HER HONOUR: If you are not prepared to abandon it

MR JENSEN:  No, I think we stop there.

HER HONOUR:  - - - we stop here and it becomesthen necessary

to determine whether or not the plaintiff was, at the

time of the commencement of the proceedin& a

resident of New South Wales and I think Mr Ashburner

did not really address that issue in any detail,

did you?

MR ASHBURNER:  I have not, Your Honour. I can do it very

shortly, if it is convenient.

HER HONOUR:  Yes, I think that is the only issue we can

now deal with today.

MR ASHBURNER:  Your Honour, the short submission I make

is.that the exp)anation given by the plaintiff

in this affidavit is unconvincing in the circumstance

that there is neither evidence called from the

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Rochford

brother to explain or deny what was said to the

investigator nor -

HER HONOUR:  There may, of course, be a preliminary question

as to whether what was said is admissible.

MR ASHBURNER:  Indeed, Your Honour, but there was no objection

taken. And the second, Your Honour, is that

there is simply no explanation given about how

on earth such a thing could happen.

HER HONOUR:	One can easily envisage explanations.
MR ASHBURNER:	Indeed, Your Honour, but where the plaintiff

chooses simply to make assertions in his affidavit

and offer no explanation at all of that, in my

respectful submission, it would not be right

for the Court to make speculation about such

explanations nor, in the circumstance, would

the Court find the material in the plaintiff's

affidavit on that question convincing. There

is no other submission I wish to make.

MR JENSEN:  Your Honour, Mr Lindemann's affidavit suggests

a conversation with his brother. To the extent

that Your Honour would attach any weight at all

to what the brother may have said, there is

no assertion that if the plaintiff lives at an

address other than 5 Rose Crescent it is a place

outside of the State of New South Wales. There

is simply no evidence - even if that has any

weight - that any other alternative abode is

outside the State. My client is present in Court

and he is available for cross-examination which

my learned friend declines and in the circumstances

I would urge Your Honour to find,.as a fact,

that the plaintiff was, at all relevant times,

a resident of this State.

HER HONOUR:  Would you just direct me to precisely the paragraph in your client's affidavit?

MR JENSEN:	In my client's?
HER HONOUR:	Yes, it is paragraph
MR JENSEN:	10, Your Honour.
HER HONOUR:	Yes, thank you.
MR JENSEN:	Nothing further, Your Honour.

HER HONOUR: Anything in reply?

MR ASHBURNER: Shortly, if I may, Your Honour. The suggestion

that Your Honour should, in the alternative,

find that the plaintiff was resident not at

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5 Rose Crescent, North Parramatta but at some

other place within New South Wales is, in my

respectful submission, a contention that cannot

be right. That is the address contended for

in the writ of summons. It appears at the end of page 3 of the writ where the address of the

plaintiff is so given. That is the address to

which the plaintiff contends, in his affidavit,

and in my respectful submission the finding must

be either that he lives there or else that the

Court is not satisfied - the plaintiff has not

discharged the onus of establishing residence
in New South Wales or, rather, has not satisfied

the Court that there is diversity of residence

as between the plaintiff and the first and second

defendant.

HER HONOUR:  Thank you. The counsel for the defendants

having declined to cross-examine the plaintiff

on his affidavit sworn 9 November 1988 and filed

in Court on that date, I am not disposed to give

such credence to the affidavit material sworn

by the defendants as to displace the statement

of the plaintiff that he was at the time of the

issue of the writ herein resident in New South

Wales, his usual place of residence being

5 Rose Crescent, North Parramatta.

In the circumstances, I would not decline

to strike out the summons on that ground.

May I then come to the constitutional matter.

It is clear, is it, Mr Jensen, that you do not

assert that the fourth defendant is the Crown?

MR JENSEN:	Yes.
HER HONOUR:	And do you do that, it occurs to me, purely fbr the purpose of raising a constitutional issue,
because CROUCH and McCAULEY V HAMILTON ISLAND would seem to suggest - no it would not, of course. (Continued on page 17)

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MR JENSEN:  Is Your Honour saying•am I saying that to avoid

creating a constitutional question? The answer

is no - - -

HER HONOUR:  No, to force a constitutional question?

MR JENSEN:  No. Your Honour, when I first looked at the

matter it seemed to have some resemblance to

CROUCH where the finding was made that the commissioner was the emination of the Crown but

there are some authorities that suggest that

that argument would not apply to the fourth defendant

here, such as TOWNSVILLE HOSPITALS BOARD V

TOWNSVILLE CITY COUNCIL, where the Court said

there was a clear trend against giving Crown

immunities unless they were clearly expressed.

Although section 3 states that the Board represents

the Crown, that, as I understand the authorities,

is not sufficient of itself to show the shield

of the Crown exists. That is the reason I abandoned

that argument.

HER HONOUR:	Perhaps then I should ask Mr Ashburner, do I take it that your argument would be the same
in respect of the third defendant even if the fourth defendant were the Crown?
MR ASHBURNER:	I think that is probably so, Your Honour,

but the concession was made before we had prepared

on the point so we hav.e simply not r.esearched

it in depth. I think, Your Honour, that would

probably be the case.

HER HONOUR:	Before directing the issue of 78B notices, that matter should be clarified because there
is some necessity for the precise constitutional
issues that emerge to be identified in that
notice. In particular, perhaps Mr Jensen ought
to give some consideration to the fourth defendant.
My recollection is that the question of the
Commissioner for Railway being the State of
Queensland emerged during the course of argument
at the invitation of the Court.
MR JENSEN:	Yes, Your Honour.
HER HONOUR:	That fs my recollection of how that happened and the issues might well change, for example,
if the Attorneys-General were interested in the issue.
MR JENSEN:	Yes.
HER HONOUR:	Perhaps I do not need to do more than suggest

that you speak to each other on those two matters;

direct that notices be given, specifying such

constitutional issues as appear to counsel to

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be raised by the matter and returning it at an

appropriate date. What do you suggest?

MR JENSEN:  I am not sure how long the Attorneys-General take

to become active in matters of that kind - perhaps

I can leave that to Your Honour.

HER HONOUR:  We should not leave it too long. December,

it will have to be. I think, perhaps, if the

matter were listed for mention on 2 December.

You have to come from Queensland, do you, Mr Jensen?

MR JENSEN:	Where would the matter be mentioned, Your Honour?
HER HONOUR:	It would normally be mentioned in Sydney. I think just on a mention, to determine the further
course by reference to whether or not the Attorneys
are intervening and if they have any suggestions as to the further course, it may be sufficient if
your solicitor appears.  Do you think that would
be -
MR ASHBURNER:	Indeed, I so submit, Your Honour, particularly

if my learned friend and I have discussed it

by telephone in the meantime. It ought to be

possible for the Court to be accurately informed.

HER HONOUR:  Yes. You might also find out - you will

know whether any of the Attorneys-General would

wish to intervene and if they have any suggestions

for the further course of the action. You might

make yourself aware of those and indicate what

your attitude is and convenient dates .·if it

is to remain a matter for a single judge.

MR JENSEN:  Your Honour, I wonder whether it would be

expedient for Your Honour to also find as a fact

as to the residence of the first and second defendants

if that - - -

HER HONOUR:  I think that is not in issue, is it?

MR JENSEN:	My learned friend says he is not - - -
HER HONOUR:	I think that the affidavits deal with that,

in any event. It is not in issue.

MR ASHBURNER:  There is no issue taken about it, I can

inform the Court.

MR JENSEN:  I do make an application for the costs thrown

away by the adjournment. The applicants must have anticipated that I would be referring to

the CONSTITUTION.

HER HONOUR:  You must have, too.

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MR JENSEN: It is the applicant's application, Your Honour.

They are seeking to ou~t the jurisdiction.

HER HONOUR:  I will reserve the question of costs at this

stage and I will also indicate that, in my view,

it was appropriate for counsel to attend but

at this stage the costs will be reserved. I

think, perhaps, we should do the mention at 9. 15
on 2 December. Is there anything else that needs

to be attended to?

MR JENSEN: No, Your Honour,

MR ASHBURNER:  No, Your Honour.

AT 11.30 AM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 2 DECEMBER 1988

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