Theophanous v The Herald & Weekly Times Limited

[1993] HCATrans 222

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4

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No Mll0 of 1993

B e t w e e n -

THE HERALD & WEEKLY TIMES

LIMITED

Applicant

and

DR ANDREW THEOPHANOUS

First Respondent

and

BRUCE RUXTON

Second Respondent

Application for removal of
cause under section 40 of the

Judiciary Act

MASON CJ
BRENNAN J

DEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 AUGUST 1993, AT 2.25 PM

Copyright in the High Court of Australia

Herald 1 11/8/93

MR R. MERKEL, OC: If the Court pleases, I appear with my

learned friend, MR M.A. DREYFUS, for the applicant.

(instructed by Arthur Robinson & Hedderwicks)

MR I.A. ARNOLD:  If the Court pleases, I appear on behalf of

the second respondent, Mr B. Ruxton. (instructed

by Norris, Coates & Hearle)

MASON CJ:  The Registrar has received a letter from the

first respondent in terms which I imagine are known

to counsel on each side. Yes, Mr Merkel.

MR MERKEL: If the Court pleases. If we could hand up an

outline of our submissions in support of the

removal application to Your Honours.

MASON CJ:	What are you seeking to have removed?
MR MERKEL:	Your Honour, we are seeking to have removed the

whole of the matter but solely for the purpose of

having the availability of the relevant grounds of

defence determined. That is what - - -

MASON CJ:  Is there any issue as to the availability of the

grounds of defence?

MR MERKEL:  Yes, Your Honour. The issue has been raised by

the plaintiff - that is the first respondent - and

indeed, it was the first respondent that has sought

to strike out the grounds relying on the

constitutional matters.

BRENNAN J: But how has he tried to strike them out?

MR MERKEL:  He has taken a motion out to seek to have them

struck out, Your Honour.

BRENNAN J: Where is that?

MR MERKEL:  I think, Your Honour, that the motion itself is

not in the - - -

BRENNAN J: Well there is an unissued summons there, which

would have that effect, but it has not been issued.

MR MERKEL:  I am sorry, would Your Honour just excuse me for

a moment. Yes, Your Honour, the unissued summons,

at pages 28 to 29, and what occurred there is there

was correspondence between the parties concerning

that matter and then at page 55 the plaintiff's

solicitors indicated that, in the last line, they

proposed to proceed with the strike-out matter, but

indicated that the appropriate proceedings should

be for the matter to be referred to the High Court,

so that the issue of the defence would be dealt

with in this Court. Now since that occurred, the

Herald 2 11/8/93

question arose in Western Australia concerning

BRENNAN J: Well, I appreciate that, but it is the

procedural problem, Mr Merkel. I mean, there is no issue at the moment for a judicial determination on

these pleadings. I mean get it into order and you

have got a different argument, have you not?

MASON CJ: Well, you have got an argument.

BRENNAN J:	You have got an argument.
MR MERKEL:	I think, Your Honour, the matter came up to this

Court in Western Australia in really the
circumstances where the availability of the ground

of defence was the subject of the removal and there was no order - I am not sure of all the papers, but

I did not understand -

BRENNAN J: There a challenge?

MASON CJ: Yes, was a challenge to the defence? That is the

point that is being raised with you.	At the moment
there is no issue in the court below.

MR MERKEL:  I think what occurred, Your Honours, is that

that may be the only - what has occurred is the

removal application had in fact overtaken what was

going to be the issued summons, and I take the

point that Your Honours have raised with me.

MASON CJ:  I cannot understand why the summons was not

issued.

MR MERKEL:  I think what occurred, Your Honours, is that it

was in fact served, but it appears to have been

unissued.

MASON CJ: Perhaps you may be able to exact an undertaking

from your opponents that they want to strike out

your defence.

MR MERKEL:  Your Honours, the situation is that the

plaintiff has in fact invited this application and

we have indicated that we would accept a condition

could proceed subject to a condition that the summons be issued, because we apprehend that

as to costs in the same terms as the matter

what has in fact happened, Your Honour, is it has

been overlooked.

BRENNAN J: That is fine, Mr Merkel, provided you can get

that condition imposed upon your opponent.	You
cannot fulfil the condition.

Herald 3 11/8/93

MR MERKEL:  No, we cannot, Your Honours.

BRENNAN J: Well then, can you get an undertaking from your

opponent?

MR MERKEL: Unfortunately, our opponent is not here,

Your Honours, and it may be that if that needed to be attended to, the matter could be stood down and

that question addressed. The other way of dealing with the matter is if the removal could be subject

to a condition that it only occur if the summons is

issued and the issue, therefore, joined. But we

are in the hands of the Court as to whether we

should stand the matter down and then seek an

undertaking concerning the issue of the summons or
have the removal application proceed, subject to
the summons - any order of the Court be subject to

the summons, in fact, having been issued. It may

be, when we make inquiry, that it was issued. It

just came to us as an unissued summons served.

MASON CJ:  What does the respondent have to say about this,

about removal?

MR MERKEL:  Your Honours, in the letter that was sent to the

Registrar - - -

MASON CJ: Yes, I follow that. It is a question of costs

raised.

MR MERKEL:  I think, Your Honour, that there is no

difficulty about the costs condition.

MASON CJ: What, you will pay the respondents' costs in any

event, as in the Western Australian case?

MR MERKEL:  Yes, Your Honour, and that is referred to in the

proposed order at page 3, paragraph 6 of our

outline of argument. That order is expressed in

the same terms as the order made in the Western

Australian removal. I should indicate, in the

letter sent to the Court by the solicitors for the

more than willing to do anything required to assist	first respondent, they indicated that they would be
in the removal - that is in the last paragraph of the letter of 10 August.

MASON CJ: Paragraph 11 of the defence - is that the only

relevant paragraph of the defence?

MR MERKEL:  I think it is paragraphs 11 and 12,

Your Honours, at pages 21 and 22. We were

concerned to seek removal of the whole of the

matter because the issues raised under those

paragraphs may impinge upon some other matter in

the pleading which ought to be resolved. But the

Herald 11/8/93

purpose of the removal is solely to determine the

issues raised by paragraphs 11 and 12.

MASON CJ:  Mr Merkel, we will hear what Mr Arnold has to

say.

MR MERKEL: If Your Honours please. I should indicate, just

for completeness, at page 33 of the application

book, paragraph 10 in the affidavit by the

solicitor for the plaintiff, he sought the orders

set out in the summons and it appears that for some

reason it was not issued or it was not served as an

issued summons and that is hopefully something we

can address.

MASON CJ:	Do you support this application, Mr Arnold?
MR ARNOLD:	Your Honour, my instructions are as follows that

if the matter is being removed solely to determine

this narrow issue, I am instructed not to oppose

removal, otherwise I am instructed not to consent.

MASON CJ: Well, as I understand it, that is what is applied

for.

MR ARNOLD:  I am sorry, Your Honour?

MASON CJ: That is all the Court has in mind at the moment.

MR ARNOLD:  Yes, and on that basis I am instructed not to

oppose removal.

MASON CJ:  Now, Mr Merkel, the Court proposes to make an

order in the terms sought in paragraph 6 of your

outline of submissions, subject to these two

amendments to that order: in the third last line

the words "and is hereby removed" are deleted;

and, after "High Court of Australia" in the

following line, the words "upon the filing of a

summons in the County Court to strike out

paragraphs 11 and 12 of the first respondent's

defence" will be inserted, and then it will

continue "subject to the condition that the	applicant pays the first respondent's taxed cost of
the proceeding in this Court".

MR MERKEL: If Your Honour pleases.

MASON CJ:  I should make it clear that the order under

section 40(1) is being made for the purpose of
determining the validity of the defence in

paragraphs 11 and 12 and for no other purpose.

MR MERKEL: If the Court pleases.

AT 2.37 PM THE MATTER WAS ADJOURNED SINE DIE

Herald 11/8/93