Sumampow & Anor Ex parte, Re Justice Owen

[2000] HCATrans 431

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry  
  Perth  No P46 of 2000

In the matter of -

An application for a Writ of Certiorari against THE HONOURABLE JUSTICE NEVILLE JOHN OWEN, A JUDGE OF THE SUPREME COURT OF WESTERN AUSTRALIA

First Respondent

CHRISTMAS ISLAND RESORT PTY LTD

Second Respondent

JEFFERY LAWRENCE HERBERT

Third Respondent

Ex parte –

ROBBY SUMAMPOW and HERMAN TJAHAJDI GANI

Applicants

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON THURSDAY, 5 OCTOBER 2000, AT 2.26 PM

Copyright in the High Court of Australia

_________________

MR K.G. ROBSON:   I appear for the applicants, your Honour.  (instructed by Su & Co)

MR R.L. McKENZIE:   I appear for the second and third respondents.  (instructed by Clayton Utz)

HIS HONOUR:   I gather that there is no appearance for the first respondent. 

MR ROBSON:   No, your Honour.

HIS HONOUR:   Has the first respondent been served?

MR ROBSON:   Yes.

HIS HONOUR:   Is there an affidavit of service which has been filed or not?

MR ROBSON:   No, I am sorry, your Honour.

HIS HONOUR:   Perhaps I should ask Mr McKenzie what his attitude to the application is.  I have nothing but the filed document and the draft order nisi, but it has been put in the list because of the perception that there may be some difficulties and they are difficulties which may affect the first respondent who has been named as a respondent to an application for a constitutional writ, although he is not an officer of the Commonwealth.  Perhaps I can ask Mr McKenzie what his attitude is to the application for the order nisi for the writ of certiorari.

MR McKENZIE:   Your Honour, I think my learned friend has an application to make to adjourn this matter, as I understand it. 

HIS HONOUR:   I see.  Perhaps I can ask for him to develop that.  I was not on notice of that fact.  Yes, Mr Robson.

MR ROBSON:   If it please your Honour, we attempted to send a facsimile to your Honour’s associate not very long ago, that is a letter from Mr McKenzie, as I understand it, which consents to our application for an adjournment and, really, the reason for the adjournment is that we consider that it would be best if this matter were dealt with after matter No P53 of 2000, which is an application under section 40 to remove an appeal from the orders of Justice Owen to the High Court.

HIS HONOUR:   Yes.  What is your attitude to that application, Mr McKenzie?

MR McKENZIE:   Your Honour, we consent to an adjournment.  We think there are some fundamental problems with both of the applications but, at this stage, we were only served with the papers on Tuesday and we are prepared, if the Court is mindful of adjourning it, to consent to that.

HIS HONOUR:   Yes.  When would the appropriate time be for the further return of the matter?  Do you have any idea as to when that is likely to be?

MR McKENZIE:   I certainly do not, your Honour.  My learned friend may ‑ ‑ ‑

HIS HONOUR:   Should I simply stand the matter over generally?  Is that what the parties are asking me to do, with liberty to restore the matter after further developments in proceedings in the Supreme Court of Western Australia?

MR McKENZIE:   That seems to me to be the most appropriate course, your Honour, and I understand my learned friend agrees with that.

HIS HONOUR:   Do you have any submission in relation to costs?  Should costs simply be costs in this application, so as to be disposed of in due course?

MR McKENZIE:   I think so, your Honour.

HIS HONOUR:   Yes, very well.  Thank you.  Mr Robson, is that what you ask the Court to do?

MR ROBSON:   If it please your Honour, yes.

HIS HONOUR:   Very well.

By consent of the parties, the orders which I make are:

1.Stand this matter out of today’s list and give liberty to the parties to restore the matter to the list upon 14 days notice to each other and to the Court;

2.Reserve costs of today to be costs in the application;

3.Certify for the appearance of the representatives of the parties in Court in chambers.

They are the orders of the Court.

AT 2.31 PM THE MATTER WAS CONCLUDED