& Anor v Culbert & Anor S3/2001 [2001] HCATrans 521 (15 October 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S3 of 2001

B e t w e e n -

DON KUMARAGAMAGE

First Applicant

PRABHA KUMARAGAMAGE

Second Applicant

and

PATRICK CULBERT

First Respondent

MR JOHNSON LCM

Second Respondent

Application for a stay

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 15 OCTOBER 2001, AT 10.17 AM

Copyright in the High Court of Australia

MR D. KUMARAGAMAGE appeared in person.

MR D. JORDAN: May it please the Court, I appear for the first respondent. (instructed by Smythe & Mallam)

HIS HONOUR: Yes, Mr Kumaragamage? You have a summons in which you seek that two special leave applications be stayed.

MR KUMARAGAMAGE: Yes, until the outcome of the special case, Order 35 case, your Honour.

HIS HONOUR: Just before you proceed. The Deputy Registrar has certified that he has been informed by the solicitor for the second respondent, Mr Johnson, LCM, that the second respondent does not wish to be represented at the hearing of the matter and will submit to any order of the Court save as to costs.

Now, what is the basis of this application of yours, Mr Kumaragamage?

MR KUMARAGAMAGE: Your Honour, I have duly filed an Order 35 application.

HIS HONOUR: Well, I do not know whether "duly" is the correct word. You have filed an Order 35 application but how can the matter possibly be filed? Your opponent has not consented to it and there are no proceedings in this Court.

MR KUMARAGAMAGE: I agree with your Honour. Your Honour, according to the Rules, several parties should endorse the application. At least two parties have endorsed. It is my submission with respect to your Honour, that the application is endorsed by at least two parties, therefore - - -

HIS HONOUR: Well, that cannot possibly be right. But there is a more fundamental point. There are no proceedings in this Court.

MR KUMARAGAMAGE: I agree with your Honour. It has been said that the special leave application is not a formal proceedings in this Court but, your Honour, it has also been said in the past in this Court that it is a special or preliminary proceedings before the proceedings - - -

HIS HONOUR: But there are no proceedings and there are no parties and Order 35 is directed to parties. But there is an even further objection. It is absurd to think that parties can just foist questions on the Full Court of the High Court of Australia. That rule is subject to a direction by a Judge. It just borders on the ridiculous to suppose that two parties can just suddenly come along and agree and require the High Court of Australia, the Full High Court of Australia to hear a question.

Now, Mr Kumaragamage, there is absolutely no substance whatever in this application of yours. I will give you three minutes to convince me otherwise. I will hear what you have to say but the time of this Court and its Justices cannot be taken up by applications that are frivolous. The idea that one side of the record can state questions without the consent of the other party also borders on the ridiculous. Now, I am not going to allow the time of this Court to be wasted. You have three minutes to convince me that you have some sort of an argument.

MR KUMARAGAMAGE: Yes, your Honour. I agree with your Honour's view that there is no formal procedures in this Court, yet, on the other hand, your Honour, there are about 30 to 40 proceedings in the Local Court in Parramatta awaiting the outcome of the resolution of these questions.

HIS HONOUR: Well, you will have an opportunity to put them before the Full High Court in your special leave application. Whatever the questions are that arise in your special leave application, you can argue them, but you just cannot come along and state some questions. As far as I can see, the questions do not even totally arise out of those proceedings. Perhaps they do, but that seems an irrelevancy. If your argument was right, it would seem that two people could agree on some questions and then ask the Full High Court to decide it.

MR KUMARAGAMAGE: Your Honour, it is my submission that is what the High Court Rule says.

HIS HONOUR: It does not say that at all. It says, first of all, "the parties" can state a case. There are no parties before the High Court at present. You are not a party, your wife is not a party and none of the respondents are parties. That was so decided in this Court more than 20 years ago in Collins v The Queen.

MR KUMARAGAMAGE: Yes, I understand that.

HIS HONOUR: Well, there are no parties so therefore there is nobody who can state a case under Order 35. But even if there were parties, that would be subject to a direction of a trial judge.

MR KUMARAGAMAGE: Yes, I agree.

HIS HONOUR: Yes. Well, thank you, Mr Kumaragamage. I do not need to hear you, Mr Jordan.

In this matter the applicants have filed a summons seeking three orders:

(1) Proceedings on matters S3 and S4 of 2001 will be stayed until the final judgment of this application.

(2) Deputy Registrar of the Sydney office shall process the applications on Order 35 of the High Court Rules filed by the first applicant in accordance with the Rules.

(3) The Final judgments of the Order 35 applications be included in the appeal books of appeals No 3 and 4 of 2001.

There are presently filed in this Court two special leave applications, S3 and S4 of 2001. However, the first applicant, Mr Don Kumaragamage, has also filed what is described as "a special case for the opinion of the Full Court questions of law - Order 35". The special case purports to be stated under Order 35, rule 1 which states:

The parties to a proceeding may concur in stating the questions of law arising in the proceedings in the form of a special case for the opinion or of the Full Court.

Two points can be made about the purported special case that has been filed by the first applicant. First, there are no parties in this Court within the meaning of Order 35 rule 1. In Collins v The Queen [1975] HCA 60; (1975) 133 CLR 120 at page 122, Barwick CJ, Stephen, Mason and Jacobs JJ said:

[U]ntil the grant of leave or special leave, there are no proceedings inter partes before the Court. This is so even in a case in which the application for leave or special leave is opposed. Whilst notice of intention to move the Court for leave or special leave may be given in writing, which is filed in the Registry of the Court, the motion for leave or special leave is made orally in court. Notwithstanding that the notice of intention to apply is served on persons who may be interested to oppose the application, the intending applicant is not bound to move the Court. When the motion is moved, the applicant for such leave or special leave is no more than an applicant desiring to obtain the Court's leave to commence proceedings in the Court.

That being so, there are no parties to a proceeding before this Court within the meaning of Order 35, no parties who could concur in stating a case to the Full Court.

The second objection to the procedure that has been adopted by the first applicant is that neither of the respondents to the application have consented to it. Mr Kumaragamage argues that it is sufficient that he and his wife - who are on the same side of the record - agree that the case should be so stated. It is enough to state that proposition to see that it has no substance whatever.

Finally, I might add, that even when parties do agree on a special case for the opinion of the Full Court, the question whether that case will be stated is always a matter within the power of the Court.

For those reasons, the application is dismissed.

MR JORDAN: Your Honour, there is an application for costs on this summons.

HIS HONOUR: Yes. Well, there is nothing you can say about that, Mr Kumaragamage. The application is dismissed with costs.

AT 10.29 AM THE MATTER WAS CONCLUDED