Knight v Bell & Anor M43/2000 [2002] HCATrans 31 (15 February 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne Nos M43 and M46 of 2000

B e t w e e n -

ALLAN ROBERT KNIGHT

Applicant

and

RANDALL JOHN BELL and PETER CLIFFORD FALCONER

Respondents

Applications for special leave to appeal

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 FEBRUARY 2002, AT 12.22 PM

Copyright in the High Court of Australia

MR A.R. KNIGHT appeared in person.

MR S.E. MARANTELLI: If your Honours please, I appear on behalf of the respondent in M43. (instructed by Lander & Rogers)

MR M.T. LAPIROW: If it please the Court, I appear for the respondent in the other matter. (instructed by

HAYNE J: Yes. Mr Knight, there are two notices of motion that have been filed, one in each of M43 and M46. Is it convenient if we deal with those notices of motion together?

MR KNIGHT: Well, your Honour, the notice of the constitutional matter refers to both of them and, like, it is my submission that the matter should be stood aside until such time as the Victorian Constitution is either proved valid which I - there is no evidence to say it is valid and I think we need to get that determined before we move on at all. But, rather than waste the Court's time, your Honour, with joining the two matters as they both relate to the same thing, just rather have it adjourned until the determination by the High Court whether Victoria has got a valid Constitution or not.

HAYNE J: Now, the 78B notices were given, were they, on 13 February, which is Wednesday last, is that right?

MR KNIGHT: Yes, your Honour, yes.

HAYNE J: Have you had any response by any of the Attorneys-General to those notices?

MR KNIGHT: No, not yet, your Honour. There was another matter I had brought up concerning the same thing to them a while back. They had said they were not going to intervene unless it went to the High Court, but it is the same matter anyway.

HAYNE J: Yes. Perhaps, as I understanding it, you ask that these matters be adjourned. Mr Marantelli, what is your attitude to the application for adjournment?

MR MARANTELLI: Your Honour, our attitude is to oppose it. Your Honour, I understood, although Mr Little has not articulated it, I understood he would be actually seeking an adjournment on two bases - - -

HAYNE J: Mr Knight, I think.

MR MARANTELLI: Sorry, Mr Knight, sorry, your Honour. The first is the service of a notice of constitutional matter which, your Honour, my instructor received it Wednesday, I received it yesterday. I have done my best to read it and understand what it is saying. I am not quite sure I understand what it says. But the other matter, your Honour, is Mr Knight served my instructing solicitors yesterday afternoon at 4.25 with an affidavit. I do not know whether it has been filed with the Court, but an affidavit sworn 6 February to which there are 21 exhibits and the thrust of that affidavit, if I might summarise it very briefly, is Mr Knight says, just to put the matter in some sort of chronological perspective, is the matter that I am concerned with, matter No 43, was argued before the Court of Appeal in Victoria on 10 February - - -

HAYNE J: All this may be so, Mr Marantelli. At the moment we are dealing with the application for adjournment. What is the basis of the opposition to the application?

MR MARANTELLI: Well, your Honour, the basis of the opposition is that I cannot make any sense out of the notice of constitutional matter. In my submission, it does not disclose any legitimate matter of a constitutional nature.

HAYNE J: Yes?

MR MARANTELLI: The second matter, your Honour, is that - although Mr Knight has not yet articulated this - I understood that he was also seeking an adjournment on the basis that he wanted to obtain a copy of the transcript of the proceedings in the Court of Appeal back in February 2000. His affidavit discloses that he has been making those inquiries since February 2000 and was told in February 2001 that the tape of the morning session had either been destroyed or cannot be found and so far as the afternoon session is concerned, it is available upon the payment of $393.50 which he apparently refuses or is not willing to pay.

CALLINAN J: Mr Marantelli, your first point really is, you say that the notice is not a valid notice because it does disclose or you are unable to discern a constitutional matter in it, that a constitutional matter is raised?

MR MARANTELLI: Yes, your Honour.

CALLINAN J: That might well be so, but the Court is nonetheless bound to allow a reasonable time to pass after a notice has been given before the Court can proceed. Indeed, it is the duty of the Court not to proceed until a reasonable time has passed under section 78B of the Judiciary Act.

MR MARANTELLI: Your Honour, in my submission, the difficulty with this is that not only does the notice of constitutional matter not make any legal sense, given the timing of its service and given the other reason - - -

CALLINAN J: Its timing is really irrelevant, I think. Once the notice has been given, subject perhaps to what you say about its content, then the Court is under a duty not to proceed until a reasonable time has passed. You can criticise the applicant for giving the notice late, that does not answer or it does not meet the proposition that the Court still must allow a reasonable time to pass.

MR MARANTELLI: Yes, your Honour, I appreciate that.

CALLINAN J: Plainly, there has not been a reasonable time, is that right?

MR MARANTELLI: That is correct, your Honour, there is only two days.

CALLINAN J: So it comes down, do you really want us to construe the notice and hold that it does not disclose or is incapable of disclosing a constitutional matter.

MR MARANTELLI: Your Honour, coupled with - and I take your Honour's point about the timing of the service not being relevant - but coupled with the fact that it was only yesterday that Mr Knight served yet another affidavit to which there are 18 or 21 exhibits.

HAYNE J: Maybe so. What do you lose if, on his application, the matter is adjourned? It is his application, not yours, Mr Marantelli.

MR MARANTELLI: Yes, I appreciate that, your Honour.

HAYNE J: He says he does not want it heard today. What is against adjourning it?

MR MARANTELLI: Nothing other than to say that from this end of the Bar table we have grave concerns about the legitimacy of the serving of a notice and - - -

HAYNE J: Maybe, but do you point to anything that is adverse if the matter goes off?

MR MARANTELLI: Only, your Honour, that it will be further time until this matter is finally determined but, no, your Honour, I do not.

HAYNE J: Yes, let us hear what Mr Lapirow has to say. Mr Lapirow?

MR LAPIROW: Your Honour, my position is slightly different than that of my learned friend, Mr Marantelli, in that we have not been served with any additional documents at all.

HAYNE J: What do you say against the application for adjournment?

MR LAPIROW: My client would suffer the prejudice of costs thrown away in this instance which there is very little prospect of there ever being met. That is primarily it.

HAYNE J: Yes. Now, Mr Knight, if the matter is adjourned, the ordinary consequence of adjournment would be in the circumstances that an order would be made against you for costs. Do you wish to say anything about that subject?

MR KNIGHT: Your Honour, all correspondence - this bringing two different sides into it, was not what I expected. I would have believed that Lander & Rogers were the ones who were responsible for M43 and M46 and I had no inclination at all that there was anyone else to serve and, in fact, I was not informed even by the High Court Registrar that I should serve anyone other than Lander & Rogers. I - - -

HAYNE J: Let us leave aside the question of who should or should not be served. My immediate question relates to costs of the adjournment. If you get an adjournment, ordinarily I think we would be minded to order that you pay the costs thrown away because of the adjournment. Do you want to say anything to us about that?

MR KNIGHT: I think they should be set aside, your Honour, because I do not think there should be any costs because I had no reason to believe there was anything other than the same matter in the appeal book and the same solicitors. In fact, I do not know who Mr Lapirow works for now. I thought it was still Lander & Rogers.

HAYNE J: Yes. Was there anything else you wish to say about this aspect of it, Mr Knight?

MR KNIGHT: Not really, your Honour.

HAYNE J: Yes, thank you.

MR KNIGHT: No. Well, I thought they were the one thing, that is all. Thanks.

HAYNE J: Yes, thank you.

The applications will in each case be stood out of today's list. They may be restored to the list on either party giving seven days' notice to the other party. The applicant will pay the respondents' costs in each case thrown away by reason of the adjournment.

AT 12.34 PM THE MATTERS WERE ADJOURNED