Rolph v Transport Workers' Union of Australia

[1990] HCATrans 92

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IN THE HIGH COURT OF AUSTRALIA

Registry No Cll of 1989

B e t w e e n -

JOHN CHARLES ROLPH

Applicant

and

TRANSPORT WORKERS' UNION OF

AUSTRALIA

Respondent

Directions hearing

McHUGH J

(In Chambers)

Rolph

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 8 MAY 1990, AT 9.30 AM

Copyright in the High Court of Australia

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MR J.C. ROLPH:  If the Court pleases, I appear for myself

in this matter. My name is John Charles Rolph.

HIS HONOUR:  Thank you, Mr Rolph. Mr Rolph, this is an

application or a summons requiring the Registrar

to receive and file a sworn affidavit of yours

of 16 July which you say was refused on 20 March

of this year. What do you want to say in support

of this application?

MR ROLPH:  Your Honour, I have endeavoured, in some way,

to support that with the submitted affidavit in

support which I assume Your Honour has considered.

HIS HONOUR:  Yes, I have. Mr Rolph, can I say two things:

first of all, I do not really think it adds anything

to the material that is there but be that as it may under Order 69A rule 7(7) of the High Court Rules, if on the hearing of a special leave

application a party intends to refer to a document

which is not included in the application book he

is required to give notice to the other party not

less than 72 hours before the date fixed for the

hearing. So when your special leave application

comes on there is no reason at all why you cannot,

after having given the appropriate notice, seek

to refer to it on the special leave application.

Whether the Court will entertain it or not, I

do not know but your position is certainly covered

by that subrule.

So I think, from your own point of view, you

are probably better off making an application at

that stage rather than now because having read

the papers I must say my view would be in accordance

with the view of the Registrar but a majority of

the Judges sitting on a special leave application

may take a different view.

(Continued on page 3)

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HIS HONOUR (continuing): So, it seems to me that you arc

fully protected and, in those circumstances, there

is no reason, it seems to me, why you should seek

to have this document heard at the hearing after

giving the appropriate notice.

MR ROLPH:  Yes, Your Honour. Could I say something to that?

HIS HONOUR:	Yes, certainly.
MR ROLPH:	I had considered that provision in drafting this
further affidavit as further material to support mv application.
HIS HONOUR:	Yes.
MR ROLPH:	But if you read my supporting affidavit you would
find in that that I rely somewhat in the support of
that material as being part of my application in endeavouring to obtain counsel. I understand that I require counsel in my special leave application.
That is my understanding of the rules of the Court.
HIS HONOUR:	Yes, that is so.
MR ROLPH:	Yes, and that is the difficulty, really, that I
personally am confronted with, is to obtain that
counsel.  I appreciate that is my problem but to assist
the - - -
HIS HONOUR:	Well, you have now got the advantage of my

remarks concerning this particular document. If

you want to put further material before counsel,

then - I am sorry, I may have misunderstood you.

Why do you want to put this document on the file?

So that it will enable you to get legal assistance?

Is that - - -

MR ROLPH:  Well, it may assist me to. Your Honour, if I could

just draw your attention to - as I do state in my

affidavit that I am a poor person.

HIS HONOUR:	Yes.
MR ROLPH:	I must say though I have not defined whether that
is within the meaning of the rules but if, for the argument, we may assume that I will proceed to, if not here, maybe in another proceeding, and I draw
your attention to Order 16 of the rules of Court
which deals in Part III - rule-28.
HIS HONOUR:	Order 16 of the rules?

MR ROLPH:  Yes, Your Honour. Order 16, rule 28.

HIS HONOUR:  Rule 28, yes.

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MR ROLPH:  What I have done and what has shown in my affidavit

that I have laid my case, as filed, by application

before counsel for opinion. I then inserted that

opinion as an exhibit to that affidavit and my
response to it. But it appears as though, according
to rule 28, as I understand the words, there is some

onus on myself to lay my case before counsel.

HIS HONOUR:  Well, I do not think so, because these rules

under the heading "Parties", are dealing with

procedures quite different from those involved on

an application for special leave to appeal. Until

the Court grants special leave to appeal there are

no parties, it is just a mere application and, indeed,

that is the reason why counsel are required on special

leave applications, because at that stage there are no

parties before the Court. There is just merely an

application. So, Order 16, which is dealing with

suing, or being sued, is not applicable to this

particular application of your8 which is governed by

the provisions of Order 69A, dealing with special

leave applications.

I think your position is protected by

Order 69A rule 7(7), and if your matter comes on with cour
then your counsel can put that document before the

Court provided you comply with the condition

precedent, namely give the 72 hours notice. I think, in

the circumstances, unless there is something further

that you would like to put, I will just simply dismiss

the summons for directions without making any order

as to costs. Is there anything further that you would

like to put, Mr Rolph?

MR ROLPH:	No, Your Honour, if that is your decision.
HIS HONOUR:	I think the matter is in your affidavit, in any

event.

MR ROLPH:  I have probably made the point, Your Honour, with

respect, and you can see from that affidavit that I have

had difficulty with legal aid, and that seems to be the

problem before me at the moment, but the - - -

HIS HONOUR: Well, you have had advice from a counsel who is not

inexperienced - - -

MR ROLPH:	No, I respect that, Your Honour.
HIS HONOUR:	- - - in this jurisdiction, and no doubt you have given

it serious consideration.

MR ROLPH:  I will undoubtedly give it more. But the 72 hours, as

I say, I read that as a minimum -

HIS HONOUR:  Yes.

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MR ROLPH:  - - - and how far outside of that I am allowed

to go, well - - -

HIS HONOUR: Well, it is not less than 72 hours.

MR ROLPH:  It is not less than, that is why I filed the

affidavit, Your Honour.

HIS HONOUR:	So, you can give notice tomorrow, if you want to.
MR ROLPH:	Well, I sought to do it with this.

HIS HONOUR: Well, thank you, Mr Rolph. I will just shortly

T3 give a judgment is this matter.

This is a summons for directions by Mr John

Charles Rolph who is an applicant for special leave

to appeal against a judgment of the Full Court of the

Federal Court of Australia. The application book has been filed and three copies of that book have been

supplied to the respondent to the application.

Mr Rolph fulfilled the requirements of the rules in

those respects on 30 November 1989. However, on

16 March 1990 he sought to file in the Registry of

the Court another affidavit which he asserts raises

matters of fact and law relevant to his application.

On 20 March 1990, the Registrar of this Court refused

to accept the affidavit for filing. Consequently,

Mr Rolph has taken out a summons for directions

dated 23 April in which he requires the Registrar

to receive and file the affidavit of the applicant

sworn on 16 March 1990. However, the application

book has been filed and copies served and there

seems no point in filing the affidavit and annexures

at this stage. Moreover, as I pointed out in

argument, the matters in the affidavit itself seem

covered by the materials in the application book.

'+ I have pointed out to Mr Rolph during argument

that, by virtue of the provisions of

Order 69A rule 7(7), if, on the hearing of a special

leave application, a person intends to refer to

a document which is not included in the application

book, he is required to give notice to each other

party not less than 72 hours before the date fixed

for the hearing.

The provisions of that rule sufficiently protect

Mr Rolph's position, provided he gives the appropriate

notice. They assume that documents can be referred

to although not part of the application itself. It
will be a matter for the members of the Court hearing
the special leave application whether they think the

affidavit is of any assistance in the matter.

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In the circumstances, I refuse to make the orders

sought in the summons for directions. There

shall be no order asto costs.

AT 9.42 AM THE MATTER WAS ADJOURNED SINE DIE

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