Smith v Millmerran Shire Council

[2009] HCATrans 189

[2009] HCATrans 189

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B17 of 2009

B e t w e e n -

CHRISTOPHER LAWRENCE SMITH

Applicant

and

TOOWOOMBA REGIONAL COUNCIL

Respondent

Application for reinstatement

KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 11 AUGUST 2009, AT 11.38 AM

Copyright in the High Court of Australia

MR C.L. SMITH appeared in person.

MR S.P. FYNES‑CLINTON:   If the Court pleases, I appear for the respondent.  (instructed by Bernays Lawyers)

Your Honour, I should inform the Court that my instructions actually come from the Toowoomba Regional Council, which is ‑ ‑ ‑

HER HONOUR:   It is now amalgamated and the Millmerran Shire Council has been taken into that amalgamation.

MR FYNES‑CLINTON:   I could say, your Honour, there is a transitional regulation which continues the litigation so there is no substantive point there.

HER HONOUR:   There is no material before the Court to identify all of this.  I suppose I should make an order that the name of the respondent be changed on the proceedings.

MR FYNES‑CLINTON:   Yes, your Honour.  If the matter proceeds past this morning I was going to seek that order, your Honour, yes.

HER HONOUR:   But regardless of the outcome today, orders would have to be taken out.

MR FYNES‑CLINTON:   That is so, your Honour.

HER HONOUR:   And I should have the right respondent.

MR FYNES‑CLINTON:   That is so.  My instructions ultimately come from the Toowoomba Regional Council.

HER HONOUR:   So it should be changed to that respondent.

MR FYNES‑CLINTON:   Yes, your Honour.

HER HONOUR:   Could your solicitor file a short affidavit after these proceedings just identifying the regulation so that the change of the Council can be shown to be correct?

MR FYNES‑CLINTON:   Yes, thank you, your Honour.

HER HONOUR:   Do you dispute that, Mr Smith?

MR SMITH:   No, your Honour.

HER HONOUR:   That appears to be the case.  It is just a formality to have the proceedings identify the right party.

MR SMITH:   Yes, your Honour.

HER HONOUR:   There will be an order in those terms that the name of the party be changed to the Toowoomba Regional Council.

MR FYNES‑CLINTON:   Thank you, your Honour.

HER HONOUR:   Now, Mr Smith, you filed a summons and a supporting affidavit for your application for reinstatement.

MR SMITH:   Yes, your Honour.

HER HONOUR:   I think you just filed a summary of argument, Mr Fynes‑Clinton.

MR FYNES‑CLINTON:   That is so, your Honour.  That is the only material for the respondent.

MR SMITH:   Yes, your Honour.  There is only a brief summary of argument as requested by Ms Ruth Cheetham, Deputy Registrar.

HER HONOUR:   Yes, thank you.  Now, I have read all the material, the summons, the affidavit and the arguments.

MR SMITH:   Your Honour, I am still yet to receive the respondent’s application or summary of arguments.  They seem to make a habit of not filing appropriate material in time. 

HER HONOUR:   I am sorry, what do you say you do not have?

MR SMITH:   With regards to a letter dated 22 July, the applicant – I will read it to you, your Honour - “The applicant is directed to file and serve a brief written submission not later than 4.00 pm on Thursday, 6 August 2009.  The respondent is directed to file and serve brief written submissions not later than 12 noon on Monday, 10 August.”  Your Honour, I am still waiting for the brief submission from the ‑ ‑ ‑

HER HONOUR:   Well, the written submissions, according to my copy – this is the written submissions of the Council were filed on 10 August.  Do you not have a copy of them?

MR SMITH:   No, your Honour.  I still have not received a copy and ‑ ‑ ‑

HER HONOUR:   Well, just wait for a moment.  We have been sitting in this courtroom all morning and you are saying that you have not received a copy of their written submissions.

MR SMITH:   Yes, your Honour.  This is one of their normal tactics to deny a person ‑ ‑ ‑

HER HONOUR:   No, well do not make those sorts of accusations.  I just want to know whether or not you have received a copy of the written submissions or not.

MR SMITH:   Yes, your Honour, that is correct.  I still have not received a copy of the written submissions.

HER HONOUR:   This is the copy that appears on the Court file.  Have you received a copy of that document?

MR SMITH:   No, your Honour, I have not.

MR FYNES‑CLINTON:   Your Honour, I am instructed it was posted, although not till Friday so perhaps that is the explanation.

HER HONOUR:   Well, that is not very satisfactory.

MR FYNES‑CLINTON:   Mr Smith does not have fax or email, but you are right, your Honour.  That is not satisfactory.  The document certainly was not finished until Friday, unfortunately.

HER HONOUR:   What is sad from both perspectives is why this was not sorted out while we have been sitting here for the best part of an hour and a half this morning.

MR SMITH:   Excuse me, your Honour.  They are quite aware of our postal service out there being only Tuesdays and Fridays so posting any mail on Friday would be totally irrelevant.

HER HONOUR:   Why did you not ask them this morning, though?  I mean, the point is you do not have a copy and we cannot proceed unless you have had a chance to read it.  But what you should have done was to have approached them this morning and asked for the document, as you obviously did not have it.

MR SMITH:   This is maybe true, your Honour, but they also should have approached me and said, “Have you received this as yet?”

HER HONOUR:   All right.  The point is you have not had a chance to read it and we cannot proceed further because you need to understand what they are saying.  What they say in the document – I will adjourn the matter so that you can have an opportunity to read it – is that you ought not to have – your application for reinstatement should not be permitted to proceed because your application for special leave has no prospects of success.  So that is what you will need to concentrate on when you see the document, but I will have to adjourn to allow you time to read it and to understand what they are saying and to ‑ ‑ ‑

MR SMITH:   And make further submissions.

HER HONOUR:   And compose your submissions in light of it.

MR SMITH:   Yes, your Honour.

HER HONOUR:   How long do you think you might need?  Do you want to adjourn to another day?

MR SMITH:   Yes, your Honour.  That would be suitable as we have a very busy schedule in our church and find it difficult just to pull a day out of the air.

HER HONOUR:   Well, we could resume later this afternoon if that would give you time to consider the submissions.

MR SMITH:   Unfortunately, your Honour, I do have to return home, which is some 250 kilometres south-west of Brisbane.

HER HONOUR:   All right.  Thursday morning or Friday morning of this week?

MR SMITH:   Friday morning, your Honour.

HER HONOUR:   Mr Fynes‑Clinton?

MR FYNES‑CLINTON:   Yes, thank you, your Honour.

HER HONOUR:   All right.  Well, 10.15.

MR SMITH:   Yes, your Honour.

HER HONOUR:   We will adjourn this matter to Friday, 14 August 2009 at 10.15.

MR SMITH:   Thank you, your Honour.

HER HONOUR:   Mr Fynes‑Clinton, you will make a copy of those submissions available immediately to Mr Smith.

MR FYNES‑CLINTON:   Yes, your Honour.

HER HONOUR:   Adjourn the Court.

AT 11.46 AM THE MATTER WAS ADJOURNED