Smith v Commonwealth of Australia; Smith v Commonwealth of Austrlia

[1992] HCATrans 318

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl99 of 1988

B e t w e e n -

WILLIAM ERROL SMITH

Applicant

and

COMMONWEALTH OF AUSTRALIA

Respondent

Office of the Registry

Sydney No S37 of 1992

B e t w e e n -

MARGARET ELLEN SMITH

Applicant

and

COMMONWEALTH OF AUSTRALIA

Respondent

Summons to amend writ and for remitter

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 29 OCTOBER 1992, AT 9.33 AM

Copyright in the High Court of Australia

Smith 1 29/10/92

MR V. DOMINELLO:  I appear for the applicant, Your Honour.

(instructed by Maurice May & Co)

MR C. KTENAS:  May it please the Court, I appear for the

defendant. (instructed by the Australian

Government Solicitor)

HER HONOUR:  That is in the matter of William Errol Smith,

is it?

MR KTENAS: That is right, Your Honour.

HER HONOUR:  And is it convenient to hear the matter of

Margaret Ellen Smith at the same time?

MR DOMINELLO:	Yes, it is, Your Honour.
MR KTENAS:	Yes, it is, Your Honour.
HER HONOUR:	And the appearances are the same?
MR KTENAS:	Yes, Your Honour.
HER HONOUR:	Mr Dominello, you are the applicant, are you?
MR DOMINELLO:	Yes, I am, Your Honour.
HER HONOUR:	Thank you.
MR DOMINELLO:	Your Honour, I rely on the summons.
HER HONOUR:	I hope you rely on the affidavit.
MR DOMINELLO:	Sorry, on the affidavits sworn by myself on

30 September. This is essentially an application

to substitute the estate and to also have the
matter remitted to the Federal Court.

Unfortunately, it came to my attention fairly late in the piece that if you look at the will fairly

closely, Margaret Ellen Smith is not the actual
executrix; she is a life tenant.	Now, I have a

copy of the will that has been typed out, if you

would care to read it?

HER HONOUR:  Yes, thank you. There has been no grant of

probate?

MR DOMINELLO:  No.

HER HONOUR: There is no real estate involved?

MR DOMINELLO: There is no real estate, however, there would

be property in the sense that there is litigation.

HER HONOUR:  Yes. Has there been contact with the other

named beneficiaries?

Smith 2 29/10/92

MR DOMINELLO:  I have contacted William L. Smith who is the

youngest son

HER HONOUR:	"William N" - - -?
MR DOMINELLO:	And all of the children are above the age of

21. Sorry, Wayne William Smith is 34. Rhonda Mary

is 40 and Diana Lee is 42 years of age.

HER HONOUR:	When was the death?
MR DOMINELLO:	The death was in -
HER HONOUR:	30 May 1990.
MR DOMINELLO:	Yes.
HER HONOUR:	Is there anything from the children on the

file? Is there any affidavit or consent?

MR DOMINELLO:  No, there is not.

HER HONOUR: Well, you have a problem, have you not?

MR DOMINELLO:	I believe so, Your Honour.
HER HONOUR:	And what do you propose to do about it?
MR DOMINELLO:	As I saw the problem, I was hoping that we

could stand the matter over, or perhaps we could

remit -

HER HONOUR:	No.
MR DOMINELLO:	If we may remit the matter down, if that is

not possible, well, if we could stand the matter

over, say, for three weeks.

HER HONOUR:  I think the preferable course would be for me

to indicate - and I take it there is no objection

to any of the orders sought?

MR KTENAS:	No, Your Honour.
HER HONOUR:	That on the presentation to this Court of the

witnessed consents of the children of the deceased

plaintiff to the matter proceeding in the name of

Margaret Ellen Smith as legal personal

representative of the estate of William Errol

Smith, an order will be made substituting the said

Margaret Ellen Smith as legal personal

representative of William Errol Smith as the

plaintiff in the action and orders will then also
be made by consent remitting the matter of William

Errol Smith and of Margaret Ellen Smith v The

Commonwealth to the Federal Court in accordance

Smith 3 29/10/92

with the draft orders on the file.	Would that be
satisfactory?

MR DOMINELLO:  Yes, Your Honour.

HER HONOUR:  Now, what about costs of today? Does anything

turn on those?

MR KTENAS:  No, Your Honour. Costs could be costs in the

cause.

HER HONOUR:  Yes. Do you agree to that?

MR DOMINELLO:	Yes, I do, Your Honour.
HER HONOUR:	Yes. Costs of today's applications will be

costs in the cause.

I should indicate, Mr Dominello, I would

expect that to be forthcoming within at least 10

days. Is there any difficulty about that? If

there is, you should tell me now.

MR DOMINELLO:  The only difficulty, Your Honour, is that

they reside in Western Australia so we would be at

the hands of Australia Post.

HER HONOUR:  Yes. I will indicate that I will expect the

paperwork, then, to be completed within 21 days.

MR DOMINELLO:	Thank you, Your Honour.
HER HONOUR:	I did indicate that I wished their consents to

be witnessed. It does not have to be done in any

formal way but you will attend to that in an

appropriate way?

MR DOMINELLO:	Yes, Your Honour.
HER HONOUR: Very well. Anything else, Mr Registrar?
DEPUTY REGISTRAR:	No, Your Honour.
HER HONOUR:	The Court will now adjourn.

AT 9.39 AM THE MATTER WAS ADJOURNED SINE DIE

Smith 4 29/10/92