Couchy v Del Vecchio B13/2002 [2003] HCATrans 557 (10 February 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B13 of 2002

B e t w e e n -

MELISSA JANE COUCHY

Applicant

and

JEANNIE ANNE DEL VECCHIO

Respondent

Office of the Registry

Brisbane No B98 of 2002

B e t w e e n -

PATRICK JOHN COLEMAN

Appellant

and

BRENDAN JASON POWER

First Respondent

ADAM RICHARD CARNES

Second Respondent

THE HON ATTORNEY-GENERAL OF QUEENSLAND

Third Respondent

Directions Hearing

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON MONDAY, 10 FEBRUARY 2003, AT 10.59 AM

Copyright in the High Court of Australia

______________

MR P.D.T. APPLEGARTH, SC: If it please the Court, I appear on the motion for the applicant. (instructed by Boe Callaghan)

MR P.J. DAVIS: If it please the Court, I appear for the first and second respondents in the Coleman matter and the respondent in the Couchy matter. (instructed by Queensland Police Service)

MR G.R. COOPER: May it please the Court, I appear for the third respondent in the Coleman matter, the Attorney-General for Queensland. (instructed by Crown Solicitor for the State of Queensland)

HIS HONOUR: I was going to call them separately actually. Call the second of the Queensland matters. Is there any appearance for the applicant in that matter.

MR APPLEGARTH: No, your Honour.

HIS HONOUR: All right, thank you. The Deputy Registrar holds a letter from the applicant in the Coleman matter; it seems to bear the date of 6 February indicating that he will not be appearing at the directions hearing today and will be unrepresented. Yes, Mr Applegarth.

MR APPLEGARTH: If your Honour pleases, the written submissions were provided to the Court by the applicant last Thursday and the respondents for whom Mr Davis appears also sent written submissions to the Court, I believe on Friday. The common issue in the Coleman and the Couchy matters concerns the validity of section 7(1)(d) of the Vagrants Gaming and Other Offences Act. The Court on 15 November 2002 expected and directed Mr Coleman to obtain legal representation to argue his appeal. It appears that he has not obtained that.

HIS HONOUR: Now, it appears that has not been done, despite the direction by Justice Gaudron at line 450 of the transcript.

MR APPLEGARTH: Yes, your Honour, and that was the reason that the motion was filed by Ms Couchy in the Coleman matter, because she seeks to ensure that the Court has the legal representation before it, that it expected to argue the constitutional issues. Her motion to intervene is not opposed by Mr Coleman or by the respondents. I submit that it is a proper case for leave to intervene in accordance with what was said in Levy v Victoria, a passage of which I have set out in paragraph 11 of my written submissions, namely that where the parties to a particular proceeding may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination, the Court may exercise its jurisdiction by granting leave to intervene. If leave to intervene is granted, it will be unnecessary for the Court to embark upon the second motion which was filed in the Couchy matter. Of course, it is accepted that the granting of leave - - -

HIS HONOUR: That motion seeking what?

MR APPLEGARTH: There was a motion filed in the Couchy matter, in the event that leave to intervene was not granted, which sought to bring before the Court in the Couchy matter the validity issue, but Ms Couchy's position is that if leave to intervene is granted to her to argue the validity issue, there is no need for the Court to entertain that motion.

HIS HONOUR: Yes, well that is not quite right, Mr Applegarth. If in the Coleman matter an appeal was successful, it might be successful in the way that it involved reading down of the legislation in a way that assisted and protected the position of Mr Coleman but did not protect the position of the other applicant. There is a real problem in hitching one case inside the other, it seems to me, where the intervener is but a private party who has their own appellate process on foot. There is also the problem that the political speech argument on the particular circumstances might succeed in one but not the other; it might succeed in Coleman's Case but not in your case. I have no concluded view about it, but all that is possible, and all these things we had in mind when we said what we said on 15 November. Now, can I ask what is happening about the preparation of the appeal book in the Coleman matter. Has anything been done?

MR APPLEGARTH: Your Honour, subject to correction in the light of any recent developments, I understand that the solicitors for the respondents had undertaken to embark upon that, but I cannot tell your Honour about where that is at.

HIS HONOUR: Yes. Well, is there anyone here who can tell me?

MR APPLEGARTH: Mr Davis has obtained instructions on that. While those instructions are being sought, I should mention that there is no suggestion that Ms Couchy was engaging in political speech and that the success of her appeal really depends upon the section being declared invalid.

HIS HONOUR: Yes, but that is what I am trying to get across to you. We will not declare the whole section invalid; it will be invalid in some operations and invalid in others. That in a way is the problem that has infested this litigation so far. Now, what is the answer to these instructions?

MR DAVIS: Your Honour, my instructions are that all the material from the Court of Appeal has been delivered to the Registrar of this Court and those who instruct me are awaiting advice from the Deputy Registrar of this Court as to what should or should not be contained in the appeal index. That is the stage that it has reached.

HIS HONOUR: Yes, thank you. That accords with the understanding of the Deputy Registrar here. Now, the real concern of the Court in the Coleman matter, if I can go back to Mr Applegarth, is that in the Coleman matter the Court have the assistance of experienced counsel, despite what Mr Coleman has as his view of his own capacities. If the direction given by the Court on 15 November is not to be observed, then the Court of its own motion may rescind special leave. It is as simple as that, and then that will leave for attention your client's application for special leave. The Court is not to be trifled with in this matter. I am therefore minded to proceed as follows.

This is what I propose, and I will hear the parties before I make the orders:

(1) If by 14 April 2003 the Deputy Registrar is informed in writing by the appellant in B98 of 2002 that he has made application in accordance with the direction at line 450 of the transcript of 15 November 2002 and that he will proceed further in accordance with that direction, then the matter will proceed for preparation of the appeal book and listing for hearing in Canberra in accordance with the High Court Rules.

(2) If the Deputy Registrar is not informed in accordance with order (1), then the matter will be relisted in the Brisbane special leave list in June to consider revocation of the grant of special leave and for the relisting of the special leave application in B13 of 2002.

That is Ms Couchy's matter.

(3) All other applications are stood over pending the outcome under orders (1) and (2).

(4) Costs of today be costs in the respective proceedings. I certify for counsel and direct that a copy of this transcript be supplied to the appellant in B98 of 2002.

Is there anything else anyone wants to say?

MR APPLEGARTH: No, thank you, your Honour.

MR DAVIS: No, your Honour.

GUMMOW J: Very well. I make orders as so indicated. They had better be taken out in both matters, I suspect. They are rather intermingled. There is no prejudice in that.

AT 11.16 AM THE MATTERS WERE CONCLUDED