Theophanous v The Herald & Weekly Times Limited

The parties to this matter were Dr Andrew Theophanous (the applicant) and The Herald & Weekly Times (the first respondent), with Mr B. Ruxton appearing as the second respondent. The dispute concerned the availability of certain grounds of defence in proceedings initiated by Dr Theophanous. The applicant sought the removal of the entire matter to the High Court of Australia for the specific purpose of having the validity of these defence grounds determined.

The central legal issue before the High Court was whether the Court had jurisdiction to determine the availability of the grounds of defence when the plaintiff (the first respondent) had indicated an intention to strike them out but had not formally issued the necessary summons to do so. The applicant argued that the matter should be removed to the High Court to resolve this issue, particularly in light of correspondence between the parties suggesting this course of action.

The High Court considered the procedural posture of the case, noting that while the plaintiff had indicated an intention to strike out the grounds of defence and had proposed referral to the High Court, no formal application or issued summons had been filed in the court below. The Chief Justice and Brennan J expressed concern that there was no live issue before the court for judicial determination. The applicant sought to proceed with the removal application, suggesting that the plaintiff had invited this application and that the removal application had effectively overtaken the intended strike-out proceedings.