Wentworth v New South Wales Bar Association

[1993] HCATrans 29

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S9 of 1993

B e t w e e n -

KATHERINE WENTWORTH

Applicant

and

NEW SOUTH WALES BAR ASSOCIATION

Respondent

Application to amend

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

Wentworth 1 12/2/93

AT SYDNEY ON FRIDAY, 12 FEBRUARY 1993, AT 9.02 AM

Copyright in the High Court of Australia

MS K. WENTWORTH:  I seek leave of the Court to appear in

this matter on my own behalf.

HIS HONOUR:	Yes.
MR P.R. GARLING: I appear for the respondent.	(instructed

by Michael Rosser & Co)

MS WENTWORTH:  Your Honour, I move on the summons filed in

this Court on 4 February.

HIS HONOUR:  Yes. The affidavit.

MS WENTWORTH:  And I read my affidavit in support,

Your Honour.

HIS HONOUR:	The date of the affidavit is?
MS WENTWORTH:	4 February.
HIS HONOUR:	Yes, I have read the affidavit.
MS WENTWORTH:	Thank Your Honour.
HIS HONOUR:	Why have you got the words "ex parte" in the

heading?

MS WENTWORTH:  Your Honour, it is for this purpose: it

seems to me that on advice and with my own

researches that this application to the High Court

should be made ex parte.

HIS HONOUR:  Why? The rules provide for notice of service

of an application.

MS WENTWORTH:  The rules would be contained and constrained

by the power which gives the Bar Association or the

Bar Council the right to appear and be heard as

found by this Court, and with leave I will hand up

some very brief point submissions on this.

HIS HONOUR:  But in any event, I have never seen the words

"ex parte" in the title to a proceeding, except to

indicate that in appropriate cases like prerogative

writs that no party is the applicant or prosecutor,

as the case may be.

MS WENTWORTH: This particular proceeding, Your Honour, is a

special proceeding as set out in the judgment of

this Court. It is a proceeding sui generis; it is

a proceeding which is an application to the Court

and in some ways it would have a very close

relationship to a writ for mandamus or

prohibition - - -

Wentworth 2 12/2/93

HIS HONOUR:  It has no relationship to that at all, but why

are we arguing about such a pettifogging point as

this. Are you not content to have the title

amended with the deletion of the words "ex parte".

MS WENTWORTH:	Indeed, Your Honour, if that is appropriate.
HIS HONOUR:	Why do I not make an order, Ms Wentworth, that

the title be amended as you request, with the

deletion of the words "ex parte".	You have no
objection to that?

MS WENTWORTH:	None at all, Your Honour.
HIS HONOUR:	Mr Garling, you have no objection to that?
MR GARLING:	No, Your Honour. Our concern was that the

insertion of the words "ex parte" would be used to

exclude us as a respondent to the application.

HIS HONOUR:  Quite obviously they could not have that effect

because the rules require that you be served and it

is inconceivable to me that you could have been

excluded from the hearing.

MR GARLING:  That was our concern and the reason for our

opposition -

MS WENTWORTH:  Your Honour, in that case, I have

misunderstood the intention of excluding the words

"ex parte". The reason that I am here today is for

the very reason that Mr Garling has just raised.

It is, indeed, to put this application before the

Court without a respondent. Perhaps I did not make myself clear, Your Honour.

HIS HONOUR: Whether that be your intention or not, the

appropriate title to the proceedings is as you

suggest, but excluding the words "ex parte". And I

am not going to hear, on this application, a
contest between you and Mr Garling as to whether or

not the Bar Association is to be heard in the event

that this application for special leave comes

before the Court.

MS WENTWORTH:	As the Court pleases.
HIS HONOUR:	I mean, it is unthinkable to me at the moment,

Ms Wentworth, that the Bar Association would not

have a locus in the matter. You may be able to

persuade the Court at some later stage, but that is

my view at the present time.

MS WENTWORTH:  Your Honour is of the view that that is not

an appropriate matter to be raised prior to an

application for special leave?

Wentworth 12/2/93

HIS HONOUR:  No. That is a matter for the Court itself to

determine if you are minded to press on with this

attitude towards the hearing. Mind you, of course,

we are a long way from a hearing of this

application because you have an application for

special leave before the New South Wales Court of

Appeal which one would expect, in the normal course

of events, to proceed - - -

MS WENTWORTH:  Your Honour, nothing, unfortunately, has

proceeded in the normal course of events in this

particular matter.	On Monday perhaps that will be
clarified.

HIS HONOUR:  I do not know about that. I shall turn a blind

eye to all that. But as far as I am concerned, the

order I make is that the title will be amended in

accordance with your application, subject to the

deletion of the words "ex parte". The costs of

this application will be costs in the application

for special leave.

MS WENTWORTH:  Your Honour, I would seek to be heard on

that. Had the Bar Association agreed to the alteration then we would not have wasted the Court's time being here today.

HIS HONOUR:  True. But you have insisted on the inclusion

of the words "ex parte". I think it more likely

that Mr Garling will be saying there ought to be an

order for costs in his favour. But I think the

fair result is the costs of this application will

be costs in the application for special leave.

MS WENTWORTH: If the Court pleases.

HIS HONOUR: Court will adjourn.

AT 9.08 AM THE MATTER WAS ADJOURNED SINE DIE

Wentworth 12/2/93