Staples v Baker

[1997] HCATrans 2

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B3 of 1997

B e t w e e n -

DOUGLAS REGINALD STAPLES

Applicant

and

PETER BAKER and NOELA BAKER

Respondents

For Directions

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 24 JANUARY 1997, AT 2.03 PM

Copyright in the High Court of Australia

MS L. ARMSTRONG:   Your Honour, I appear for the New South Wales Crown Solicitor, appearing as agent for the Queensland Attorney.  (instructed by the Crown Solicitor for New South Wales )  The Queensland Attorney will seek leave to intervene in these proceedings on Thursday at the hearing.

MR G.D. NASH:  I appear as agent for Baker Johnson in Brisbane who act for Douglas Staples, the appellant in the matter.  (instructed by Baker Johnson)

HIS HONOUR:   The parties have handed up a consent order.  There is no problem so far as I am concerned about paragraph 1(b) but paragraph 1(a) does seem to me to create some problems.  In so far as a document is filed in the Registry, then the public would seem to be entitled to have regard to it and to inspect it, if necessary, upon payment of the relevant fee.  However, Order 58 rule 16 does empower:

The Court or a Justice may, upon application, order that -

(a)  an affidavit or other document filed in a Registry which contains scandalous matter shall be taken off the file;

The language used in 1(a) is “to be removed from the file”.  One problem is that the respondents are not represented here but in fact they have signed the consent order, have they not?

MS ARMSTRONG:   Yes, your Honour.

MR NASH:   Indeed, your Honour, yes.

HIS HONOUR:   It may only be a verbal distinction but I think I would prefer to adjourn this matter to see if you can get some instructions or contact the respondents to have the words “removed from the file” changed to “taken off the file”.  Although, in one sense, they only have a very indirect interest in it.  It is mainly your client, Mr Nash, that is concerned with it.  It is your document, is it not?

MR NASH:   Yes, indeed, your Honour.

HIS HONOUR:   Do you have any objections yourself to having the words “taken off the file” being substituted for “removed from the file”?

MR NASH:   Personally, your Honour, in that I think they mean the same thing, I do not have any objection, but I really cannot move off this document without instructions from my principal.  So that is the difficulty.  I think the pragmatic issue is that whatever is contained in these paragraphs ‑ and I have not seen it - is to be removed from the file or taken off or whatever the appropriate words are, but I think the substantial point is that they can be put back in if my friend’s application fails.

HIS HONOUR:   Yes, I appreciate that.  So there are two interests that have to be addressed.  One is the interveners who want this removed and if they cannot get their hearing because your side’s counsel is not available, then they want the matter frozen until next Thursday, and my understanding is your client is happy to consent to that.  However, the public has another interest in it, and that is the right to inspect any document that is filed in the Registry.  I do not think myself that there is any real distinction between being “removed from the file” or being “taken off the file”.  I think in substance they must be one and the same thing.  Have you anything to say about that, Ms Armstrong?

MS ARMSTRONG:   No, I agree they seem to mean the same thing, your Honour.

HIS HONOUR:   Yes. 

MR NASH:   Your Honour, knowing the actual verbiage that your Honour has in mind, I might be able to take some instructions from somebody who is in the office of my principals which would mean if I can consent to that, your Honour is happy with that, my friend is happy with that; my friend can speak to the respondents.  Perhaps a short adjournment would be ‑ ‑ ‑

HIS HONOUR:   How long, half an hour, an hour?

MR NASH:   If I had half an hour it would be ample, I think, your Honour.

HIS HONOUR:   Yes, very well.  Perhaps we will adjourn the matter until 2.45 pm.

MR NASH:   Yes, your Honour.

MS ARMSTRONG:   Yes.

HIS HONOUR:   The matter will be adjourned until 2.45 pm.

AT 2.09 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.20 PM:

HIS HONOUR:   I understand the parties have got instructions from their particular clients.

MR NASH:   That is correct, your Honour.  Everybody is in approval that the words “removed from” be taken out and replaced with the words “taken off”.

HIS HONOUR:   Yes.

MR NASH:   Before your Honour makes the orders I have also been instructed to say to your Honour that the fact that my client has entered into these consent orders with my friend’s principal is no indication that my client concedes that my friend’s principal has a right to intervene in the proceedings.

HIS HONOUR:   Yes, I understand that.

Pursuant to the consent order that has been filed under Order 44 rule 23 I make the following orders:

1.  Pending the determination of the matters raised in the summons filed on behalf of the Attorney-General for the State of Queensland:

(a)Any material relating to any matter the subject of paragraphs 2, 4(a) and 5(a) of the statement in support of the application for special leave to appeal be taken off the file; and

(b)No further material relating to any matter the subject of paragraphs 2, 4(a) and 5(a) of the statement in support of the application for special leave to appeal be filed by any party.

2.The present summons be adjourned to Thursday, 30 January 1997.

3.That the costs be reserved.

Is there anything further?

MR NASH:   Your Honour, does this mean that those particular papers, if possible, have to be physically removed from the Registry?

HIS HONOUR:   Yes, I think it does, but whether that is the case or not, there has certainly been an order and it is no longer part of the files, therefore it is not ‑ ‑ ‑

MR NASH:   Thank you, your Honour.

HIS HONOUR:   I had contemplated a different kind of order in accordance with this order that had been made in David Syme & Co Lt v General-Motors’ Holden’s Ltd (1984) 2 NSWLR, but it is of much the same effect.  The form of that order would have been to direct that the relevant document be placed in an envelope and not to be opened without the leave of a Judge of this Court, but I think Order 58 rule 16 achieves the object which the parties want to achieve for the period until next Thursday.  That being so, it remains only to adjourn this matter until Thursday, 30 January 1997.  Thank you very much for your assistance.

MS ARMSTRONG:   Thank you, your Honour.

AT 2.24 PM THE MATTER WAS ADJOURNED