Tobin v Worland

[2005] HCATrans 604

[2005] HCATrans 604

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S318 of 2005

B e t w e e n -

TERESA MARY TOBIN

Applicant

and

ZACHARY LUCAS WORLAND (BHT JOHN WORLAND)

Respondent

Summons for expedition

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 AUGUST 2005, AT 10.29 AM

Copyright in the High Court of Australia

MR J.E. MACONACHIE, QC:   If your Honour pleases, I appear with MR J.C. SHELLER for the applicant.  (instructed by Carroll & O’Dea)

MR R.J. BURBIDGE, QC:   I am for the respondent with my learned friend, MR D.J. PRICE, may it please the Court.  (instructed by Stacks – The Law Firm)

HIS HONOUR:   Mr Maconachie, are you aware that the matter of Manley v Alexander is going to be heard in Perth?

MR MACONACHIE:   Your Honour, I am aware that it is going to be heard some time in October.  I drew a conclusion from that information it was likely to be Perth.  We had information that it would be Canberra.  I spoke last night to Mr Walker.  He did not know one way or the other at that stage.

HIS HONOUR:   Well, it is going to be heard in Perth in that week.  So to a large extent that takes the ground from under your feet, but you are in luck to some extent because there happens to be a vacancy on 2 September and in the next case there is a vacancy in the special leave list on 9 September and these two cases could be slotted in to those days without displacing any other special leave application.  There is no other special leave application that would be ready to go on. 

In relation to the other matter, the QBE matter, it wants to be heard with Nominal Defendant v GLG.  That will not be heard before December.  So it is probably better that yours go in on 2 September, I think, and the other one on 9 September.

MR MACONACHIE:   We would be grateful if that could be done, your Honour.  Your Honour’s comment of the fact of Manley v Alexander being heard in Perth takes the ground from under my feet to some extent, it may not, but that is something that can be investigated subject to the Court having time in Western Australia to hear it.

HIS HONOUR:   You have a large number of hurdles in your way.  First of all, it is in Perth; second, there was a formal statement that only two hours would be allowed for Manley v Alexander; third, this case seems to be a pure question of fact and arguably there is no similarity between the two cases.  There were two dangers in Manley, there is only one in your case, but anyway, that is another matter.

MR MACONACHIE:   That is something we can discuss with some vigour perhaps on the 2nd, your Honour.  I understand what your Honour says but if I may respectfully say so, there are answers to all of that.  If

your Honour would be kind enough to make that order listing it for the 2^nd, that would certainly suit us and I do not see that we can ‑ ‑ ‑

HIS HONOUR:   I have to hear from Mr Burbidge.  He is entitled to natural justice.

MR BURBIDGE:   I will take that opportunity very briefly, your Honour.  We of course have no objection to the expedition as such.  Our concern is that it not be related to the Manley matter which in our view gives rise to different questions.  Does your Honour have written submissions from us, may I ask?

HIS HONOUR:   Yes, I have ‑ ‑ ‑

MR BURBIDGE:   I was not sure if they had made it to your Honour’s file.

HIS HONOUR:   Yes, they arrived yesterday.

MR BURBIDGE:   Then I need say no more.  Yes, thank you, your Honour.

HIS HONOUR:   I have read Manley v Alexander, I have read the transcript and I have read the submissions of both.

MR BURBIDGE:    As long as it is clear, your Honour, that we are not in any way consenting to the idea that we should be hooked to Manley v Alexander, a separate question entirely.  As to the actual expedition, we are in the hands of the Court as to that matter.

HIS HONOUR:   I have expressed strong views about granting expedition in special leave applications.  Last year there were 876 special leave applications filed, which was an increase of 20 per cent to the previous year.  Every time an application is expedited, it means somebody else has to be displaced.  At least so far as I am concerned, and I suspect the rest of the Court, applications for expedition should only succeed in rather exceptional circumstances, but there happen to be exceptional circumstances.  There are only 10 matters in the list for 2 September instead of the usual 12 and there is also vacancies on 9 September, so we shall put you in on the 2^nd.

MR BURBIDGE:    Could I say no more than this, your Honour, that for our part we would say that the obvious differences between the two cases, rather than destroy the basis on which the expedition is sought.  I do not want to say any more than that.

HIS HONOUR:   I understand that.

MR BURBIDGE:    The availability of a space is certainly an exceptional circumstance, I expect.

HIS HONOUR:   Yes.  In other circumstances I might have reminded Mr Maconachie of what happened in the House of Lords once when Mr Robert Alexander stood up to seek leave to appeal and Lord Diplock, who had read the papers, was so persuaded of the futility of the appeal that he simply shook his head and Mr Alexander sat down without putting any argument whatever.  On the face of it this seemed to me that it was perhaps a shake of the head case, but the matter is in a different context now.  It will be heard on 2 September. 

I make an order that the hearing of this matter be expedited and be placed in the list for Friday, 2 September 2005.  The appropriate order is that costs of this matter should be costs in the special leave application.

AT 10.35 AM THE MATTER WAS CONCLUDED