TL (A Child) v State of Western Australia

[2006] HCATrans 574

[2006] HCATrans 574

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P65 of 2005

B e t w e e n -

TL (A CHILD)

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Summons for reinstatement

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO PERTH

ON WEDNESDAY, 25 OCTOBER 2006, AT 9.16 AM

Copyright in the High Court of Australia

MR L.C. CARTER:   If your Honour pleases, I appear for the applicant.  (instructed by Aboriginal Legal Service of Western Australia (Inc))

MR S. VANDONGEN:   If your Honour pleases, I represent the respondent in this matter.  (instructed by Director of Public Prosecutions (Western Australia))

HER HONOUR:   Yes, Mr Carter. 

MR CARTER:   Your Honour, this is an application for reinstatement of a special leave application that it appears has been deemed abandoned pursuant to the Rules.  Your Honour hopefully has seen at least the summons, together with the affidavit of my instructing solicitor, Mr Collins, filed on 7 September?

HER HONOUR:   Yes, I have read those.

MR CARTER:   Your Honour, in short compass this is a situation of relatively minor error in the preparation of application books.  It has not been due to any wilful neglect.  I am not sure if your Honour also has the copy of the application book itself that was rejected ‑ ‑ ‑

HER HONOUR:   Yes.

MR CARTER:    ‑ ‑ ‑ but I have seen plenty worse.  That said, I understand that the State of Western Australia does not oppose the application for reinstatement.  I know that is not determinative of the matter, but that agreement could be reached to have matters sorted out within 14 days.  We are anxious to have the matter reinstated and to proceed with it.

HER HONOUR:   Yes, and you would be able to undertake, I dare say, to prosecute the application for special leave expeditiously and to comply with the requirements of the Rules with respect to the further conduct of the application.

MR CARTER:   Certainly, your Honour.

HER HONOUR:   Thank you.  I will just call on the respondent to elicit what response there is to the application.  Thank you, Mr Carter.

MR VANDONGEN:   My friend is correct; the State does not oppose the application.

HER HONOUR:   Thank you.  Mr Carter, you would be in a position to file that application book previously rejected within a short space of time, I dare say?

MR CARTER:   Yes.  Could I just clarify one matter with your Honour.  You may have picked up that under the Rules there is a requirement that an application book in the case of a criminal matter contain the transcript of the plea.  In our view that should include the submissions made on the plea in full, at least to the extent that they are referred to in the summary of argument.  There seems to be some difference of view with the Registrar about that.  If your Honour would, if necessary, direct that the application book is to contain the transcript of the plea submissions, I would be grateful for that.

HER HONOUR:   It is probably not necessary to make that direction, although I am accepting in saying that there is force in what you say.  I would have thought there should be no problem.  If there were, it would be a matter that could be redebated if necessary, which I doubt it would be.  So what I am inclined to do, Mr Carter, is to recognise the force in what you say, and perhaps the direction ought to be something along the lines that the applicant file and serve the draft notice of appeal, the summary of argument on the application for special leave to appeal, together with the application book on or before Wednesday, 1 November 2006.  I would assume there will be no difficulties about the matter to which you adverted.

MR CARTER:   If your Honour pleases.

HER HONOUR:   Very well then.  Upon the applicant undertaking by counsel to prosecute the application for special leave expeditiously and to comply with the requirements of the High Court Rules in respect of the further conduct of the application for special leave to appeal and any appeal as may ensue, I order that application P65 of 2005 not be deemed to be abandoned and further direct that the applicant file and serve his draft of notice of appeal and summary of argument on the application for special leave to appeal, together with the application book, on or before Wednesday, 1 November 2006.  Nothing further, Mr Carter?

MR CARTER:   I am sorry, your Honour, this is my fault.  I must have misheard you.  I did have a conversation with my instructor before.  If we could have a little more time on that.

HER HONOUR:   What would you be seeking, Mr Carter?

MR CARTER:   If it is in the form that is currently existing, everything has already been served.

HER HONOUR:   That is why I thought there ‑ ‑ ‑

MR CARTER:   If we could file it in the form that it is in, we could comply with that deadline, but the reason I raised that other matter is that part of the problem here seems to be dispute about exactly what can go in the book.  If we could have till 8 November.

HER HONOUR:   Very well, I will make that date 8 November 2006.

MR CARTER:   Thank you very much, your Honour.

HER HONOUR:   Thank you, Mr Carter.  Nothing further?

MR VANDONGEN:   No thank you, your Honour.

HER HONOUR:   Adjourn the Court.

AT 9.22 AM THE MATTER WAS CONCLUDED