Scott & Anor v Pedler & Ors

[2005] HCATrans 61

[2005] HCATrans 061

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M83 of 2004

B e t w e e n -

RALPH SCOTT

First Applicant

SOPHIE SCOTT

Second Applicant

and

OFFICER TONI LEE-ANNE PEDLER, DEPARTMENT OF SOCIAL SECURITY

First Respondent

OFFICER JULIE A WILLIAMS, DEPARTMENT OF SOCIAL SECURITY

Second Respondent

AUTHORISED REVIEW OFFICER ROBERT A CHRYSTAL, DEPARTMENT OF SOCIAL SECURITY

Third Respondent

Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 24 FEBRUARY 2005, AT 2.29 PM

Copyright in the High Court of Australia

__________________

MRS S. SCOTT appeared in person.

MR R. SCOTT appeared in person.

MR P.J. GINNANE:   If your Honour pleases, I appear on behalf of the respondents.  (instructed by Australian Government Solicitor)

HIS HONOUR:   It is proposed, is it, Mrs Scott, that you should speak on behalf of both of you.  Is that right?

MRS SCOTT:   For both of us, yes, your Honour.

HIS HONOUR:   Yes.  Thank you.  Mrs Scott, I have read the summons, I have read the outline of submission for summons which was dated 22 February. I have also read the respondent’s outline of submission dated 23 February.  Have you seen that document?

MRS SCOTT:   Yes, I have seen that.

HIS HONOUR:   Yes.  I have also read, I should add, the affidavit of 7 January sworn by both of you.  Is there any objection, Mr Ginnane, to the reception of that affidavit?

MR GINNANE:   No, your Honour, there is not.

HIS HONOUR:   Yes, very well then.  I have read that material, Mrs Scott.  What else do you wish to add in support of the application?

MRS SCOTT:   I would like to elaborate a bit, your Honour.

HIS HONOUR:   Yes, please.

MRS SCOTT:   There are six points to support the grant of summons. Point No 1 is the main point and points 2 to 6 are in addition. The main point is that whether the applicants have the prospects of success on the application for special leave is not the argument that the opposing counsel may make here for the summons. Whether the proposed supplementary written argument of the proposed oral argument will give the prospect of success and not for the summons. That must be left to the decision of at least two Judges, especially where no opportunity of no oral argument is given, and I refer your Honour to the use of plural and the statement about two Judges in rule 41.11.1 of the High Court Rules 2004.

Additionally, the point here for the summons is the applicants are deprived of the right to present the oral argument of which they were certain preparing their written summons and their reply, and that right was given by Order 69A of the previous High Court Rules. Point 2 refers to the prospects of success. Contrary ‑ ‑ ‑

HIS HONOUR:   At the moment at least, Mrs Scott, it seems to me that I should not make any assessment about the prospects of success.  As you say ‑ ‑ ‑

MRS SCOTT:   That is the main point, your Honour.

HIS HONOUR:   Yes, that is a matter that has to be determined by two members of the Court, not by me sitting alone.

MRS SCOTT:   Yes, your Honour, especially that the orders that we are seeking is to grant leave to write the supplementary summary of argument or grant leave that the previous rules of the High Court regarding the oral argument should apply.

HIS HONOUR:   If I were to make an order granting you leave to file a supplementary summary of argument, do you want to press the claim to the second form of order that you ask for?

MRS SCOTT:   No, your Honour, one or the other.

HIS HONOUR:   Then if I were to make an order in the form of the first order, that would meet what you are asking for, is that right?

MRS SCOTT:   I would be very glad, your Honour.

HIS HONOUR:   Yes, if you would not mind taking a seat, Mrs Scott.  I just want to ask Mr Ginnane a question.  Mr Ginnane, do you wish to be heard against my making an order substantially in the form of paragraph 1 of the summons filed 7 January?

MR GINNANE:   No, your Honour, our submission came forward in order to identify what we regarded as the status of the rules, the High Court Rules 2004. If your Honour grants Mr and Mrs Scott the benefit of an additional submission, so be it. Our position was to oppose it on the basis that there has been nothing advanced by Mr and Mrs Scott to suggest that the rules ought not apply to them as to other litigants in their position.

HIS HONOUR:   Yes, well ‑ ‑ ‑

MR GINNANE:   And that is the extent of our appearance, your Honour.

HIS HONOUR:   Yes, thank you.

MR GINNANE:   If your Honour pleases.

HIS HONOUR:   Well, Mrs Scott, would you, if you wish, just take a note of what I am proposing to say and then we will see whether that meets the occasion, but if you want to take a note you may be assisted by it. 

If I direct that: 

1.        The applicants have leave pursuant to rule 41.07.4 to file and serve on or before 4.00 pm, 10 March 2005 a supplementary summary of argument not exceeding five pages in length; 

2.        The respondents have leave pursuant to rule 41.07.4 to file and serve within seven days of the date of service on them of the applicants’ supplementary summary of argument, that supplementary summary being not more than five pages in length; 

3.        The costs of this application will be costs in the application for special leave. 

Does that meet what you want, Mrs Scott?

MRS SCOTT:   That satisfies me totally, your Honour.

HIS HONOUR:   Yes.  Do you want to be heard, Mr Ginnane, against my making directions in that form?

MR GINNANE:   No, your Honour, I do not.

HIS HONOUR:   There will be directions in that form.  Thank you, Mr and Mrs Scott. They are the orders in those terms.  You understand that the period is 14 days from today?

MRS SCOTT:   Yes, your Honour.

HIS HONOUR:   Yes, thank you very much, Mr and Mrs Scott.

AT 2.39 PM THE MATTER WAS CONCLUDED