Torney, Ex parte- Re Colina

[1998] HCATrans 433

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M85 of 1998

In the matter of -

An application for Writ of Prohibition against HERMIE GENEROSO COLINA (Marshal of the FAMILY COURT OF AUSTRALIA) and THE HONOURABLE JUSTICE BURTON OF THE FAMILY COURT OF AUSTRALIA

Respondents

Ex parte -

PRESIDENT TREVOR DONALD TORNEY

Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 23 NOVEMBER 1998, AT 9.40 AM

(Continued from 9/11/98)

Copyright in the High Court of Australia

MR D.A. PERKINS:   If your Honour pleases, I appear for Mr Torney.  (instructed by Kuek & Associates)

MR H.J. LANGMEAD:   I appear for the respondents, your Honour.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Well, now, Mr Perkins, where is the matter up to?

MR PERKINS:   Your Honour, the position is that so far as the section 78B notices are concerned, they have been served but they were not served until Friday.  There is what I take it will be a preliminary question raised by my learned friend, supported by an affidavit with which I have just been provided a copy.  I have had some discussions with my learned friend but I am not certain that I know what his current position is so far as the matter proceeding now is concerned.

So far as my client is concerned, there has been a draft affidavit supplied to the respondents.  My client was to be here this morning and swear that.  I am afraid he is not here at the present time.  He was spoken to this morning and it was understood that he would be here by 9.30.  That draft affidavit, which is in now a form to have it sworn as soon as he is here, raises matters to do with a number of public statements by the learned Chief Justice of the Family Court.  There is also a document which has been supplied to the respondents that sets out a number of proposed further grounds.

HIS HONOUR:   What is it you say I should do this morning?

MR PERKINS:   Your Honour, if I may say frankly, it is obvious that I am not in a position to use an affidavit which, at the present time, has not been sworn so to that extent and to the end of getting that sworn I need some indulgence from your Honour.  I might say I am not happy to be putting forward the proposed further grounds but they are matters which seem to be of considerable importance in the context of these charges.  They seem to raise matters of considerable importance.

Your Honour, I would like to ask my learned friend whether his application is for an adjournment.  I think I am in a position where I could, because of the late service of the section 78B notices, I could hardly be resisting that application and, in any event, as I have said - - -

HIS HONOUR:   At the moment I do not hear you, in effect, asking me to proceed, Mr Perkins.  You refer to affidavits which are partly prepared but not yet sworn, grounds which have been suggested.  Do you wish me to proceed on the material I now have or not?

MR PERKINS:   No, I do not, your Honour.

HIS HONOUR:   Mr Langmead, what do you say I should do today?

MR LANGMEAD:   Your Honour, the clear late and, for today’s purposes, ineffective service of the 78B notices, in light of your Honour’s indication that they ought be served, that it has been ineffectually done for today’s purposes, may create some problems with proceeding today.  In addition to that default, we point to the late service of additional materials and they, in draft form, as at 3 o’clock on Friday – I will not take your Honour to the affidavit at this point - - -

HIS HONOUR:   What do you say I should do?

MR LANGMEAD:   We say that in light of these defaults and the two‑week period that was given - there is no explanation for the defaults – that one course would be to proceed on the material that was before the Court on 9 November but that has the obvious problem, of course, that the Attorneys have not been notified.  We are in a position to make application with full argument that the order nisi ought not be granted.

HIS HONOUR:   I understand that.  I have earlier indicated that my present inclination is that the grounds that have so far been foreshadowed, without regard presently to the new grounds that are spoken of, might warrant directing that the application for an order nisi be made in the first instance to a Full Court.  I must say that if this litigation is to go forward, it is to go forward.  It is to state the obvious to say that there are more productive things for me to be doing than sitting here dealing with matters that are not ready to proceed.  We have had a full sittings.  I have now a week between sittings before another very full sittings.  This Court does not have the luxury of time to deal with matters which are not in a position to proceed. 

Given the state of the matter, my inclination is to adjourn it over; adjourn it over to the Monday following the December sittings which will be 14 December and I would do so, saying this:  if the parties are not then ready to proceed, I will take a deal of persuasion to do anything other than simply dismiss the matter out of hand.  We do not have the time or the luxury of spending time doing these sorts of things. 

I do not propose to embark on debates about questions of costs this morning but I suggest that if either party desires to make any submissions about who should bear the costs of this adjournment, those submissions should be reduced to writing and served in ample time before the adjourned hearing.  There are seven members of this Court.  We have just undertaken

a two-weeks sitting.  We have a week before we undertake another two‑weeks sitting.  In both sets of sittings there have been very complex and difficult matters raised.  We do not have the time for this luxury.

The application will stand adjourned until 14 December 1998, at 9.30 am.  Costs will be reserved.  I will certify for counsel.

MR LANGMEAD:   Your Honour, would it be appropriate to file now an affidavit that will be relied on in relation to costs or would - - -

HIS HONOUR:   That is a matter for you, Mr Langmead, if your side wishes to file affidavits.  They may file them with the Registrar rather than in Court.

AT 9.50 AM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 14 DECEMBER 1998