Sherman v Watson

[2005] HCATrans 63

[2005] HCATrans 063

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M128 of 2004

B e t w e e n -

PETER SHERMAN

Applicant

and

DIANA WATSON

First Respondent

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

Second Respondent

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 24 FEBRUARY 2005, AT 3.15 PM

Copyright in the High Court of Australia

MR P. SHERMAN appeared in person. 

MS K.J. KNIGHTS:   If your Honour pleases, I appear for the respondent in that matter.  (instructed by Clayton Utz)

HIS HONOUR:   Mr Sherman, you appear for yourself, do you?

MR SHERMAN:   I am, your Honour.

HIS HONOUR:   Yes, Ms Knights for the first respondent.  I think I have a certificate ‑ ‑ ‑

MS KNIGHTS:   I beg your pardon.

HIS HONOUR:    ‑ ‑ ‑ from the Deputy Registrar that she has been informed by Senior Registrar of the Victoria Civil and Administrative Tribunal, the second respondent that the second respondent will submit to any order of the Court, save as to costs.

Now Mr Sherman, I have again read the summons that you have filed.  I have read the affidavit you have filed in support and I have read the outline of submissions that you have filed.  Ms Knights, is there any objection to the reading f the affidavit in support of the application?

MS KNIGHTS:   There is no objection, your Honour.

HIS HONOUR:   Yes, well that may be taken as read.  Those documents I had mentioned are I think the only documents that are filed in connection with the summons.  Is that right Mr Sherman?

MR SHERMAN:   And there was a submission of ‑ ‑ ‑

HIS HONOUR:   Yes, I thought I had said that I had read your outline of submissions in support of the application for interlocutory orders.  If I did not say so, I intended to.  Yes. 

MR SHERMAN:   Your Honour, in order to be brief, as your Honour would have found out by now that the application is virtually in similar terms as the application that was made slightly prior, and the requisite ‑ ‑ ‑

HIS HONOUR:   Again the same question arises, Mr Sherman. 

MR SHERMAN:   Yes.

HIS HONOUR:   Why should I not?  Why should I single this application out as one to which the old Rules should apply?

MR SHERMAN:   Your Honour, the applicant is painfully aware that these are the first applications under the new Rules under – or perhaps with a view of obtaining orders under rule 1.03.04.  There is no established case law at the moment under the new Rules in order for me to present the Court with sufficient reasons, but I would only reiterate that once again, when this proceeding began in 2004 it was intended for the application to reach the hearing and the applicant proceeded in the assumption that that will be the outcome of the procedural process.

HIS HONOUR:   Yes.

MR SHERMAN:   Other than that, I have nothing further to add, except to say that there were no submissions in reply or otherwise from any of the respondents.

HIS HONOUR:   Yes, thank you.  Now Ms Knights, do you support or oppose the making of the order which Mr Sherman seeks?

MS KNIGHTS:   The order is opposed, your Honour.

HIS HONOUR:   Yes, I need not trouble you further.  Thank you, Ms Knights.

The applicant applied for special leave by application filed 18 June 2004.  The application is for special leave to appeal from the orders of the Court of Appeal made on 21 May 2004, dismissing the applicant’s application for leave to appeal from a decision of a County Court judge sitting as a vice president of the Victorian Civil and Administrative Tribunal.  The application for special leave has proceeded to the point of settling of an index of the application book, but the application book has yet to be filed.  The settled index was prepared on 21 January 2005. 

By summons of 27 January 2005, the applicant seeks orders that the High Court Rules 1952 apply without any modification “to all past, current and future steps in this action”.

Subject to that order he seeks leave to file a supplementary summary of argument.  He seeks an extension of time within which to file and serve the application books; otherwise he seeks directions fixing times for provision of documents recording extrinsic matter to be referred to, documents recording the authorities and statutory material upon which he would rely, and the document providing written submissions and authorities.  Finally, he would seek leave for provision and presentation of materials in the form of computer files on digital compact disk. 

The orders which the applicant seeks are not in any substance different from those which he sought in the matter of Sherman v La Trobe University with which I dealt immediately before the hearing of this application. Again, in this matter, no reason is advanced why the procedures fixed by the High Court Rules 2004 should not apply to the determination of this application for special leave to appeal.

The applicant fastens particularly upon the provision of rule 41.11.1 of the 2004 Rules which provides that:

Any two Justices may determine an application without listing it for hearing and direct the Registrar to draw up, sign and seal an order determining the application.

But for an order by the Court or a Justice ordering that the former Rules should apply, with or without modification, the provisions of rule 41.11.1 are provisions which may be engaged in respect of this application:  see, in that respect, rule 1.03.4 of the Rules.  The fact that the application was instituted at a time prior to the implementation or promulgation of the new Rules is not itself reason why the new Rules of Procedure should not be available.

As I said in connection with the matter of Sherman v La Trobe University, in this application for special leave, as in all other applications for special leave, it is the written submissions of the parties which are the primary vehicle for persuading the Court that there is a point appropriate for the grant of special leave:  see, in this respect, Muir v The Queen (2004) 206 ALR 189 at 191 paragraph [8].

Accordingly, the first form of order which the applicant seeks by his summons should not be made. 

The applicant does not point to any particular form of supplementary summary of argument which he would seek to file.  That being so, I should not make an order granting leave for him to do so, noting in that respect that this is to leave unaffected the power of a Registrar later to permit the filing of some supplementary outline of argument pursuant to rule 41.07.4 if the filing of such a supplementary summary is thought appropriate.

So far as the orders seeking the fixing of times for filing of documents relating to extrinsic material and the like are concerned, again, if the matter is to be entered for oral hearing, those are matters that can be dealt with in the ordinary course following the fixing of a date for oral hearing of the application for special leave.

Finally, as in the earlier case, although no mention is made in the written or oral arguments of why leave should be granted for provision or presentation of materials in the form of computer files on digital compact disk, that is not a course that is to be followed in this case.  The order which is sought in that respect should be refused.

Accordingly, the applicant’s summons should stand dismissed.  Ms Knights, again, I would be minded to make the costs of the summons and the application costs in the application for special leave.  Do you wish to be heard against that?

MS KNIGHTS:   No, not to be heard against that, your Honour.

HIS HONOUR:   Yes.  The costs of the application will be costs in the application for special leave. 

I will adjourn.

AT 3.26 PM THE MATTER WAS CONCLUDED