Murphy & Anor v Overton Investments Pty Limited S138/2001 [2001] HCATrans 472 (25 September 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S138 of 2001

B e t w e e n -

JOHN JAMES MURPHY and DAPHNE MURPHY

Applicants

and

OVERTON INVESTMENTS PTY LIMITED

Respondent

Application for expedition

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 25 SEPTEMBER 2001, AT 10.00 AM

Copyright in the High Court of Australia

MR G.A. MOORE: I appear for the applicants. (instructed by Wendy Fisher, The Aged-Care Rights Service Inc)

MR A.G. KOUMOUKELIS: I appear for the respondent. (of Gadens Lawyers)

HER HONOUR: Mr Koumoukelis, you oppose this application?

MR KOUMOUKELIS: We do not consent to the application and we simply seek to make some comments in relation to the application. But, in effect, we leave it to the Court to determine the merits of the application as put by my friend. I simply wish to put some issues to the Court so that the Court is aware of various matters arising from the proceedings.

HER HONOUR: I would have thought the age of the applicants were sufficient reason to expedite this matter, regardless of the position of other proceedings.

MR KOUMOUKELIS: I hear what you say, your Honour, and I would simply say I understand why your Honour says that. I simply wish to put in the context of the overall history of the proceedings between the applicants and the respondent. The Federal Court proceedings have not been the first instance of proceedings between the parties, there has been a long history before the Supreme Court. It is referred to in the judgment of Justice Emmett at first instance. The matter has been the subject of determination of Supreme Court, Court of Appeal. The matter, that is the subject of this application, gave rise to orders that the matter, in fact, be referred back to the Justice Emmett for further consideration. That has occurred. We are before Justice Emmett again on Friday. I simply wish to put those matters before the Court so the Court appreciates that this is not the first time this application has been anywhere in any jurisdiction in the courts; that is issues have been ventilated in various degrees in other courts.

So, you weigh the age against the fact that many of the issues have been batted out between the parties in different places.

HER HONOUR: That is always the case by the time a matter gets to this Court.

MR KOUMOUKELIS: Indeed, your Honour, but I merely wish to draw that to the attention of the Court.

HER HONOUR: Yes. Thank you. Mr Moore, I would be minded to grant your application, given the age of the applicants. I can give you Friday, 23 November or Tuesday 20 November, which would you prefer?

MR MOORE: Could you repeat those days?

HER HONOUR: Friday, 23 November or Tuesday 20 November, both in Sydney.

MR MOORE: Yes, 20 November would be satisfactory, I think to both parties as I understand.

MR KOUMOUKELIS: Yes, your Honour.

HER HONOUR: The matter will be expedited until 20 November. What am I to do about costs? Applicants' costs in the cause?

MR MOORE: Yes, I would be content with that.

MR KOUMOUKELIS: Your Honour, we would seek that it simply be costs in the cause; not necessarily the applicants' costs in the cause.

HER HONOUR: Very well. You cannot oppose that, can you?

MR MOORE: The only thought I had was there was correspondence to my friends which I do not think was responded to as to their attitude; whether it would have been necessary to come here apart - - -

HER HONOUR: It would have been necessary to come here.

MR MOORE: On that basis, I cannot say any more.

HER HONOUR: No. Costs of today will be costs - I will just say, costs of the special leave application, and I will certify for the attendance of legal representatives, including counsel.

MR MOORE: If the Court pleases.

MR KOUMOUKELIS: If the Court pleases.

AT 10.05 AM THE MATTER WAS CONCLUDED