Hadjipanayotis, Application on behalf of S00/1999 [1999] HCATrans 635 (10 December 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney

In the matter of -

An application on behalf of ANASTASIOS SERAFIM HADJIPANAYOTIS

GAUDRON J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 DECEMBER 1999, AT 3.23 PM

Copyright in the High Court of Australia

GAUDRON J: I see a gentleman has approached the Bar table.

MR M.J. GLENNON: I seek the Court's indulgence to raise an urgent matter. (instructed by Brock Partners)

GAUDRON J: What is this urgent matter that you seek to raise?

MR GLENNON: That matter that I seek to raise is a matter of both importance and urgency, in our submission. It relates to the recently conducted referendum. My client wishes to apply - - -

GAUDRON J: Who is your client?

MR GLENNON: My client is Mr Anastasios Serafim Hadjipanayotis, a gentleman of Greek extraction but an Australian citizen.

KIRBY J: We had better get the spelling correct.

MR GLENNON: May I hand up the relevant Court documents.

GAUDRON J: There are no relevant Court documents at this stage. I have not got any.

MR GLENNON: May I hand up one set?

GAUDRON J: Tell us what the nature of your application is, first.

MR GLENNON: We are initially seeking to issue out of the Court Registry a writ of summons with a statement of claim attached, an ordinary summons supported by an affidavit - I think that is about the sum total of the documents. The reason for the urgency is that to maintain a live, justiciable issue it would appear to be essential that the plaintiff obtain an interim injunction pending further order of the Court, restraining the return of the referendum writ. The writ issued by His Excellency the Governor-General was ordered to be returned on the 9th - I will read it out. The relevant paragraph says, "For the return of the writ the 9th day of January 2000". I have the actual Gazette in front of me signed by the Governor-General.

GAUDRON J: That is a month away.

MR GLENNON: It is indeed and we are all aware, of course, of the Christmas vacation coming up. May I just add that we are not seeking to do anything ex parte. The problem - the brick wall that we have met up with is that the Registry have declined, for whatever reason, to issue the process that was submitted over the counter yesterday and this is the last day, as I understand it, I may be wrong, that the Court is sitting in Sydney. If I were not to seek to raise this matter now, I would have to presumably approach a Justice in Canberra, which certainly we are prepared to do, but it just so happens we lodged the papers yesterday, we were unable to issue them, and we need to issue them, I would respectfully suggest, in the interests of both the Crown and ourselves, before Christmas.

KIRBY J: What was the reason given by the Registry for refusing to receive the documents? There is a procedure in this regard, as you would understand. The Court sometimes faces applications which are completely misconceived and therefore a procedure is set in train, if not under the Rules, by the practice of the Court, and there is a procedure for that to be reviewed by a single Justice in Chambers. Although the Christmas vacation will begin at the end of today, there is always a Justice available and there would always be - or almost always - a Justice available in Sydney.

MR GLENNON: Neither my client nor I wish to cause any unnecessary inconvenience to this particular Bench. If the indication is - - -

KIRBY J: There is a procedure, you see, Mr Glennon, and the procedure ought to be followed in the ordinary course. That procedure would be explained to your solicitor or to your client or to you, I imagine, by the Registry and if you are not content with the refusal by the Registry to accept the documents, then you have a right to pursue that procedure to bring the matter in the normal way, rather than in this irregular way.

MR GLENNON: In that case I must confess my ignorance. I was not aware that there was a procedure for approaching a single Justice and in those circumstances - - -

GAUDRON J: I think the procedure is not quite approaching a single Justice. What you do is you apply for leave to issue a proceeding and it comes before a single Justice and is dealt with on the papers, as I understand the procedures.

MR GLENNON: With respect, we wished to issue a writ of summons which, as I understand it, requires no leave at all.

KIRBY J: You still have to present a summons which, on its face, presents an arguable issue and not something that is simply an attempt to invoke the jurisdiction of the Court where, plainly on the face of documents, the Court does not have it. In the first instance, at least, that is a matter that is dealt with by the Registrars of the Court, not by the Justices, and then there is a procedure, as Justice Gaudron has said, which is normally dealt with by a Justice in Chambers. Sometimes the Justice will direct that the matter be listed for argument in Court. I have done that myself. But normally it is done in Chambers.

MR GLENNON: Would it be possible to have such a matter dealt with by a single Justice this afternoon, for instance?

GAUDRON J: No.

KIRBY J: It will just take its ordinary course. But it is not true to say that the Court goes on vacation, that we all go off to the beach. That does not happen in the High Court of Australia. The Court is always present.

MR GLENNON: I just want to make - if the Court would just allow me this final indulgence - I am always open to be corrected by any person at all, but a great deal of care was taking in studying the Rules of Court to issue the process in accordance with the Rules of the Court and I am not aware of any legal or irregularity in the documents at all.

KIRBY J: There is nothing we can say about this because we do not know and we have not seen the documents and therefore - - -

GAUDRON J: And we do not wish to see them at this stage because that would cut across the procedures. We do not know whose - - -

MR GLENNON: So may I take it, without wishing to cause any embarrassment to the Court, that if we follow the normal procedures and everything is in order, we may be able to make an application before Christmas, perhaps, to a single Justice, if it is convenient to the Court?

KIRBY J: That will be a matter for the ordinary procedures to be followed.

GAUDRON J: Yes.

MR GLENNON: I will not wish to detain the Court any further.

GAUDRON J: Thank you very much, Mr Glennon.

The Court will now adjourn until 31 January in Canberra.

AT 3.31 PM THE MATTER WAS CONCLUDED