Sailor v The Queen

[1991] HCATrans 178

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S24 of 1991

B e t w e e n -

EDWARD COOKE SAILOR

Applicant

and

THE QUEEN

Respondent

Application for directions

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

Sailor 1 23/7/91

AT SYDNEY ON TUESDAY, 23 JULY 1991, AT 9.59 AM

Copyright in the High Court of Australia

MR M.F. ADAMS, QC:  I regret that I also appear in this

matter for the applicant, Your Honour. (instructed

by Arden Solicitors)

HIS HONOUR:  Why would you regret that you are in the

matter, Mr Adams?

MR ADAMS:  I regret it because, Your Honour, I am here, as I

see the history, again to apologize to the Court
for the way in which this matter has been dealt

with.

HIS HONOUR: It has a similar history, has it not? Again,

there was not any supporting affidavit; again,
there was a problem about service which rather

indicates that the similar practice has been

followed by your instructing solicitor.

MR ADAMS:  Yes, I think it is wide - Your Honour, that is

so.

HIS HONOUR:  But you were going to say you think the

practice is widespread?

MR ADAMS:	Yes, I think it is, Your Honour.
HIS HONOUR:	What is the reason for it?
MR ADAMS:	I think, as I say, the view is to attempt to -

because of the way in which the lists occur,

attempt to get, as it were, on to the escalator at

the earliest possible time and leave matters that

require further consideration, applications for

legal aid, to be dealt with at that time. I

believe that is why the practice has arisen and
hitherto the registry has, fortunately no doubt for

the profession, taken a generous view in relation

to those matters.

HIS HONOUR:  The registry has not taken a generous view at

all, but the registry has taken no action about it.

MR ADAMS:	I accept that, Your Honour. In this matter - - -
HIS HONOUR:	But these hearings are really to demonstrate

that the Court is not prepared to tolerate

non-compliance with its rules.

MR ADAMS:  Your Honour, I think I can assure you, certainly

from Mr Arden's point of view, who takes these

matters very much to heart, that the strict

compliance with the rules may be taken as granted

from here on.

HIS HONOUR:  I will accept that.

Sailor 2 23/7/91

MR ADAMS:  Your Honour, there was here again some delay in

the grant of legal aid.	I am unable to say why
that was so.

HIS HONOUR:  Mr Durie may be able to throw some light on

this.

MR G.DURIE of the Legal Aid Commission: Yes, Your Honour.

In this matter, an application for aid was received

on 27 March. There was a delay until 8 May which I

cannot explain, Your Honour, before an

authorization was given to obtain an advice as to
the merits of the appeal. Aid was in fact granted
for the appeal on 24 May but although there is a
note of a telephone conversation of about that time
advising the grant of aid, the formal letters were

not in fact sent until 5 July.

HIS HONOUR:  Is there any reason why the formal letters were

not sent until 5 July?

MR DURIE:  Not that I am aware of and not that I have been

able to find out from questioning people yesterday,

Your Honour.

HIS HONOUR:  When were your solicitors first aware that

legal aid had been granted, Mr Adams?

MR ADAMS:  I am instructed when the letter was - I was

unaware of the telephone call, Your Honour, but my

note of the chronology from the solicitor refers to

the letter being received on 9 July, which is

consistent with - - -

HIS HONOUR:  Mr Durie, I do think that in future when a

decision is made to grant legal aid, that decision

should be communicated immediately in writing.

MR DURIE:  It is proper procedure to do so, Your Honour, and

I cannot explain why that did not occur. As I

said, I questioned those responsible yesterday and

could not obtain any - - -

HIS HONOUR:  It is fairly obvious that in cases of this kind

there are bound to be a percentage of cases where

oral communication either falls by the wayside or

is not acted upon until such time as there is

co?!irmation in writing.

MR DURIE: Yes, Your Honour.

HIS HONOUR: Very well. Yes, Mr Adams.

MR ADAMS:  Your Honour, I, as it happened, am now briefed as

at yesterday in this matter.	The ground of appeal
is capable of very short statement.	I should think

Sailor 23/7/91

that the affidavit and the summary of argument

could be filed in 10 days, a week to 10 days.

HIS HONOUR:  I shall order that the affidavit in support of

the application and the applicant's summary of

argument be filed and served within 10 days of

today's date, that means by Friday week.

MR ADAMS: If the Court pleases.

HIS HONOUR:  Is there any representation for the DPP?

MR s. KAVANAGH of Director of Prosecutions New South Wales:

Yes, there is, Your Honour.

HIS HONOUR:	Is there anything you want to say?
MR KAVANAGH:	No, Your Honour, your orders cover the

situation. We have been served with the

application for special leave but that is all. For

the reasons we have gone into, I think the other

documents do not exist yet, but as soon as we get

it, we will reply.

HIS HONOUR:  The matter can be. disposed of on that.

AT 10.05 AM THE MATTER WAS ADJOURNED SINE DIE

Sailor 4 23/7/91