Kwa v City of Stirling P4/1998 [2000] HCATrans 180 (14 April 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth Nos P4 and P11 of 1998

B e t w e e n -

FRANCIS TAK LAU KWA

Applicant

and

CITY OF STIRLING

Respondent

Applications for special leave to appeal

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 14 APRIL 2000, AT 1.19 PM

Copyright in the High Court of Australia

GAUDRON J: Mr Kwa, you appear in person do you.

MR F.T.L. KWA: Yes I do, your Honour.

GAUDRON J: Yes, thank you. Now would it be convenient, Mr Kwa, for us to deal with matters P4 and P11 together. They both seem to be related.

MR KWA: Yes, your Honour.

GAUDRON J: And for you to take 20 minutes to deal with those two matters together?

MR KWA: Your Honour, I would take a lot less than 20 minutes to deliver.

GAUDRON J: Thank you. Now, who appears against you in matters P4 and P11?

MR P. MENDELOW: If your Honour pleases, for the respondents. (instructed by Bowen Buchbinder Vilensky)

GAUDRON J: You are in both matters, are you, Mr Mendelow, P4 and P11?

MR MENDELOW: Yes, yes, your Honours, yes, that is correct.

GAUDRON J: Thank you. Yes, Mr Kwa?

MR KWA: Yes, your Honour. I will start at P4, your Honour, first. I received the respondent's submission to the Court by fax a couple of days ago in the evening, and to argue that the leave I am seeking is incompetent. Now, to address that point there, the respondent have some two years to file this....of submission, and yet they did not do it. Therefore my view is that even if your Honour grant his submission that the matter is incompetent, I should not he required to pay costs.

Regarding the matter of that they raise even, firstly, the submission made by the respondent should not be accepted by the Court, because I feel that while it does not give me any time to address it, in any case.

GAUDRON J: I am sorry, can you say that again.

MR KWA: Well, I feel that while the respondent did not serve me this particular submission that late after two years, and therefore - - -

GAUDRON J: Are you talking about the submission for these proceedings or the submission in the Supreme Court?

MR KWA: No, just the submission in the early proceedings were made by the applicant about two years ago.

GAUDRON J: Yes.

MR KWA: Whereas the amended supplementary summary of argument was only made, come to my knowledge, about 30 hours ago, and therefore I feel that was not fair, particularly I am an unrepresented person.

GAUDRON J: Could you speak up, please, Mr Kwa. Could you speak up and perhaps a little more slowly?

MR KWA: Yes. My submission regarding the amended submission by the respondent, which only reached me about 30 hours ago by fax, should not be accepted by the Court; and even if it were accepted, this argument which asks the Court to rule that my application was incompetent should not stand in this Court because it has been estopped, to make such a submission was never mentioned two years ago. Had been mentioned this particular face of the law two years ago, I could have answer to that particular question they have, that is regarding P4. Now, furthermore, with P4 there regarding the validity of bringing it to this Court here, I already notified on a separate matter, which is P6, of this - - -

GAUDRON J: Yes, we will come to P6 a little bit later. If you would deal P4 and P11 first.

MR KWA: I understand. I would like to refer you to a paragraph in P6, please, your Honour.

GAUDRON J: Yes.

MR KWA: Regarding P6 there, if your Honour would turn to page 17, P6, in which at item 7 I stated "And that the decision is final." Now, final means - - -

GAUDRON J: Speak up.

MR KWA: Final means a single judge had a power of the Full Court of the Supreme Court. Now, this was not being contradicted by the respondent. I come back to P4, regarding P4 there, I do not have any further submission to make.

Now, if your Honour pleases, would you like me to go P11 now?

GAUDRON J: Yes, thank you.

MR KWA: I go to P11. Now, again P11 is virtually a repeat of the argument which they make on P4 in that they argue that the matter is incompetent. Now, if that was the case there, they should not have spent time to argue it on the respondent summary argument and they should not have let me know in such a late stage, yesterday or the day before. If they had done that, I would have been given the opportunity to apply to the Full Court of the Supreme Court to rectify the matter, or I could have discontinued this matter altogether. I close my submission, your Honour. Thank you.

GAUDRON J: Thank you, Mr Kwa. We need not trouble you, Mr Mendelow.

We are of the opinion that these matters raise no question of general principle sufficient to attract the grant of special leave. The question of costs having been addressed in the written submission, and again today, we see no reason to depart from the ordinary rule in this area. Accordingly, both applications are dismissed with costs.

Call P6 and P53.

AT 1.27 PM THE MATTER WAS CONCLUDED