Hart v Herron S117/1996 [1997] HCATrans 49 (13 February 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S117 of 1996

B e t w e e n -

BARRY FRANCIS HART

Applicant

and

JOHN T. HERRON

Respondent

Application for special leave to appeal

BRENNAN CJ

TOOHEY J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 13 FEBRUARY 1997, AT 12.18 PM

Copyright in the High Court of Australia

MR C. BRANSON, QC: If the Court pleases, I appear for the applicant. (instructed by Cashman & Partners)

MR P. LeG. BRERETON: May it please the Court, I appear with my learned friend, MR D.W. PHILLIPS, for the respondent. (instructed by Blake Dawson Waldron)

MR BRANSON: Your Honours, I wish to apply for an adjournment of the application. An affidavit has been filed this morning in the Registry of Mr Everingham, my instructing attorney, who is in Court. May I hand to your Honours four copies of the affidavit so sworn and which was provided to my learned friends this morning. Do your Honours wish me to read that aloud or - - -

BRENNAN CJ: No, we can read it for ourselves.

MR BRANSON: Thank you, your Honours. It is an affidavit of Roland George Muir Everingham, sworn 13 February 1997. Paragraph 2:

On 11 February 1997, Mr Hart was at my office in conference with me.

BRENNAN CJ: We need not trouble you to read it - - -

MR BRANSON: I beg your Honours' pardon. I misheard you. I apologise.

BRENNAN CJ: We will ask Mr Brereton what his attitude is to the application.

MR BRANSON: If your Honour pleases.

MR BRERETON: The application is opposed, your Honours, and I would wish to cross-examine Mr Everingham, albeit shortly, on this affidavit.

BRENNAN CJ: On what aspect?

MR BRERETON: In order to show, as I apprehend I will be able to, that this follows a course of applying or requesting an adjournment over the fortnight leading up to the events the subject of the affidavit.

BRENNAN CJ: That may be so, but the problem that arises here is on the question of his ability to give instructions and the verbal instruction to withdraw the brief from counsel.

MR BRERETON: It would be material for the Court to know upon what grounds that instruction was given and what reasons accompanied it.

BRENNAN CJ: The proposition is that the instruction was given and, having regard to the certificate, that there was a doubt as to whether the instruction was given on any rational ground.

MR BRERETON: So far as the certificate is concerned, your Honour, if I can draw the Court's attention to the fourth paragraph. In so far as the certificate expresses anything about the ability of Mr Hart to give instructions, it is simply:

Mr Hart has told me, and I accept, that he is unable to give instructions -

The doctor does not deign to give his own opinion on that topic.

BRENNAN CJ: Yes. Mr Brereton, we do not propose to accede to your application to cross-examine the deponent in this case. It is clear that the proposition advanced in the affidavit of Mr Everingham is one which is not accepted on the other side of the Bar table. That may well be so. There is then a controversy about the subject. This Court is not usually adapted to the taking of evidence and we do not propose to delay the proceedings for the purposes of resolving any contest of that kind.

What we propose to do is to adjourn the application to the next sittings of the Court which will be in Sydney in the April sittings with the intimation that whether Mr Hart is available to give instructions or not on that occasion, the matter will proceed to a hearing and determination. The costs of today will be the costs which will be part of the costs of the proceedings then to be disposed of.

AT 12.26 PM THE MATTER WAS CONCLUDED