Semmens v Calaby & Ors; Robertson v Calaby

[1989] HCATrans 175

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No Al7 of 1989

B e t w e e n -

ROBERT JAMES SEMMENS

Respondent/Plaintiff

and

PETER CALABY, KEVIN GEORGE FLAVEL,

SIMON THOMAS LANE, BARBARA ANNE THORPE,

CHRISTOPHER J. SUMNER, THE STATE OF

SOUTH AUSTRALIA

ROBERT ALTON DALY, DESMOND HENNESSY,

RONALD KELTON, GEOFF MERRIT and

THE COMMONWEALTH OF AUSTRALIA

Applicant/Defendants

Office of the Registry

Adelaide No Al8 of 1989

B e t w e e n -

JOHN WILLIAM ROBERTSON

Respondent/Plaintiff

and

Serrnnens

PETER CALABY, KEVIN GEORGE FLAVEL,

SIMON THOMAS LANE, BARBARA ANNE THORPE,

CHRISTOPHER J. SUMNER, THE STATE

OF SOUTH AUSTRALIA,

ROBERT ALTON DALY, DESMOND HENNESSY,

RONALD KELTON, GEOFF MERRIT and

THE COMMONWEALTH OF AUSTRALIA

Applicant/Defendants

Application to strike out

statement of claim

DEANE J

(In Chambers)

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TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON MONDAY, 21 AUGUST 1989, AT 9.29 AM

Copyright in the High Court of Australia

MR J.W. ROBERTSON:  Your Honour, my name is Robertson and

I am appearing for myself.

MR R. J. SEMMENS:  Your Honour, Robert Semnens is my name and I am

appearing for myself.

HIS HONOUR: Yes. I suggest you both come and sit at the bar

table.

MS C.M. BRANSON: If the Court pleases, I appear with

MR M. JOHNS for the first to the sixth defendants.

(instructed by Crown Solicitor for South Australia)

MR B. LAWSON, QC: If Your Honour pleases, I appear with

my learned friend, MR G. FISHER, for the seventh

to the eleventh-named defendants in both matters.

(instructed by Australian Government Solicitor).

HIS HONOUR: Mr Robertson and Mr Semmens, you understand what

we are about this morning, do you? That is that

there is an application before me to strike out

each of your statements of claim on the ground

that they do not disclose a cause of action.

MR ROBERTSON:	Yes, Your Honour.
MR SEMMENS:	Yes, Your Honour.

HIS HONOUR: The convenient course seems to be that we deal

with the matters together.	Are you agreeable to
that?

MR SEMMENS:	Yes, I agree, Your Honour.
MR ROBERTSON:	Yes, Your Honour.

HIS HONOUR: And, I presume, that is the approach counsel take?

MS BRANSON:	Yes, Your Honour.
MR LAWSON:	Yes, Your Honour.

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HIS HONOUR:	I have read the papers.	My inclination is that

the application to strike out, if it includes as

it would seem to, an application for orders which

will finally determine the matter, should be
remitted to either the Supreme Court or the Federal

Court.

Now, I will deal with that aspect of the matter

first. Since you are for the first of the present

applicants, Ms Branson, I will hear you first in

relation to that.

MS BRANSON: Yes. Well, if Your Honour was minded to refer

to the Supreme Court, we would not oppose that

order being made.

HIS HONOUR:	And what about you, Mr Lawson?
MR LAWSON:	Yes, if Your Honour pleases, I would submit that·

the Supreme Court of South Australia is the appropriate

court to which the actions should be remitted.

HIS HONOUR:  There is no question, is there, as to where any cause of action arose?

MR LAWSON: No, Your Honour. It would appear that so far

as one is able to discern the cause of action they

must have arisen in South Australia.

HIS HONOUR:	I see. Well, Mr Robertson?
MR ROBERTSON:	Your Honour, yes, I oppose the matter being

remitted to the Supreme Court. I would agree

to it being remitted to the Federal Court and if
that was done we would seek to have it transferred

to Sydney or Canberra because we would like to

certainly would have liked to have been heard in

engage counsel, Mr Ward, and he is resident in

the High Court but we understand that may not be

convenient to the Court so my application is that .if

it is to be remitted; that is, to the Federal Court

in Sydney or Canberra.

HIS HONOUR:	I see, and Mr Semmens, are you - - - ?
MR SEI-1MENS:	I would have to agree with what Mr Robertson

said, Your Honour.	My comments are the same,
thank you.

HIS HONOUR:  I see, good, thank you. Ms Branson, it is a

borderline case in that section 44(2)(a), is it

not - - -

MS BRANSON:  Yes, as to that, I simply draw Your Honour's

attention, with respect, to Mr Lawson's submission

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Semmens

that the matter should go to the Supreme Court

of South Australia.

HIS HONOUR:	I did not hear what you said, I am sorry.
MS BRANSON:	Sorry.  I draw Your Honour's attention to the

submission of Mr Lawson appearing for the

Commonwealth that the Commonwealth itself would

prefer the matter to be in the Supreme Court and,

in those circumstances, it is our submission that

the matter will appropriately be in the Supreme

Court.

HIS HONOUR:  Yes, thank you. Mr Robertson, since you are

appearing in person, I will make a little clearer

the way my mind is working than I normally would.

The fact that you would like to have a particular

counsel who does not ordinarily carry on practice
in South Australia does not seem to me to be an

important factor in a case which arises in

South Australia from things that happened in

South Australia.

Well, now, that being so, there are two

possible courts to which I can remit the matter

and I have power to remit it to either. The

thing that is presently weighing in my mind is

that your action, as I read it, is said to be an

action in conspiracy. That is so, is it not?

MR ROBERTSON:	Yes, Your Honour.
HIS HONOUR:	Well, now, that is a tort as we call it and

the Supreme Court is the court which ordinarily

deals with that sort of action from matters arising

in South Australia. The Federal Court does not

ordinarily deal with that sort of claim.

That being so, once I decide that I cannot non-South Australian counsel, it seems to me to	place much weight on your preference to brief a	follow that since the other parties insist on it that
the appropriate course is to remit the matter to the Supreme Court.

MR ROBERTSON:  Your Honour, could I add an extra ground?

HIS HONOUR:  Yes. I just went to such length so you could

say anything you wanted to say.

MR ROBERTSON:  Yes. Your Honour, Mr Ward has been admitted

to the bar in South Australia so it is possible

for him to come here. I want to add a much more

important reason - I just spoke quickly off the

cuff when the matter was first raised - our

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Semmens

problem arises from myself taking action some

years back against His Honour Mr Justice Matheson.

It was for an alleged breach of the CRIMES ACT

in a Taxation Board of Review case and all of

our problems have flowed from the attack on a

Supreme Court judge and if we develop our case

before you this morning, it will be shown that

there are several judges in the Supreme Court that

we allege show bias towards us and it is unfortunate

but that is just the facts of it.

Now, a further problem that we have is that

Mr Justice Fisher of the Federal Court was also

involved in this Taxation Board of Review matter

and he was also included in this action. The

action I am speaking of is totally supressed.

It was commenced in 1981 and it gradually fell away but, unfortunately, I have caused the wrath

of the court to be upon me and, although

Mr Justice Fisher did appear for myself some many

years ago and I have a very high regard for him,

unfortunately, he was just caught up in the situation

so that it does seem to me that this matter should
be heard where no one could say there is any colour

and it seems to me that anywhere but South Australia

that situation would apply. I only thought of

Sydney or Canberra. I thought it would be the

most convenient but, for that matter, Melbourne

or Brisbane would be just as impartial. I mean,

we could not lodge any formal complaint. I

am assuming that Mr Justice Fisher is still in

this State but that might not be so and I do not

want to speak against Mr Justice Fishe~ But coming

back to the Supreme Court, it is quite unfortunate

that if we develop that case before you this morning
we will be alleging corruption and I regret but

that is our case.

HIS HONOUR:	Is there anything you want to add, Mr Semmens?
MR SEMMENS: Perhaps, Your Honour, only that I feel that

perhaps I have become the meat in the sandwich

in this whole situation and I have been dragged

along, I suppose, in the slipstream of Mr Robertson

but there is nothing further, Your Honour, that

I would like to add.

HIS HONOUR:  I have given consideration to what has been

said by Mr Robertson and Mr Semmens. None the less,

I consider it appropriate that the Court to which the

proceedings should be remitted is the Supreme Court
of South Australia. It will, of course, be open
to the plaintiffs, if they feel any particular
judge of that court should not deal with the matter,

to make a request in that regard.

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Semmens

The orders that I make in each case are:

1. That the further proceedings in this

action be remitted to the Supreme Court of

South Australia;

2. That the action proceed in that court as

if the steps taken in the action in this Court
had been taken in that court and as if Adelaide

had been stated in the writ to be the place of

trial;

3. That the Registrar of this Court forward

to the proper officer of that court photocopies

of all documents filed in this Court;

4. That the costs of the action to the date

of remission, including the costs of this application

and of taking out these orders, be according to

the scale applicable to proceedings in this Court

and thereafter according to the scale applicable

to that court and in the discretion of that court.

I certify that the matter is proper for the

attendance of senior counsel in chambers.

Are there any further matters?

MR ROBERTSON:	No, Your Honour.
HIS HONOUR:	Very well, we will now adjourn.

AT 9.42 AM THE MATTER WAS ADJOURNED SINE DIE

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Semmens