Alfaro & Anor v Nash & Ors S205/2002 [2003] HCATrans 769 (10 June 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S205 of 2002

B e t w e e n -

PEDRO ALFARO

First Applicant

SILVIA GLADYS ALFARO

Second Applicant

and

SALLY SUSAN NASH T/AS SALLY NASH & CO LAWYERS

First Respondent

JOHN PAUL MEEHAN T/AS JOHN MEEHAN SOLICITORS

Second Respondent

CHARLES JOSEPH MONTI T/AS SMITH MONTI AND COSTA SOLICITORS

Third Respondent

PLACIDO COSTS T/AS SMITH MONTI AND COSTS SOLICITORS

Fourth Respondent

GEORGE LIONEL CADDY

Fifth Respondent

TASOS CASTRISOS

Sixth Respondent

MARK EDGARD FINDLEY

Seventh Respondent

LYNNE HUGHES T/AS HUGHES & TAYLOR SOLICITORS

Eighth Respondent

MICHAEL TAYLOR T/AS HUGHES & TAYLOR SOLICITORS

Ninth Respondent

SANTO PANTE

Tenth Respondent

SANTA PANTE

Eleventh Respondent

ROB BURKE SHERIFF OFFICER NSW

Twelfth Respondent

RODNEY CUTLER POLICE OFFICER NSW

Thirteenth Respondent

DONALD BANN POLICE OFFICER NSW

Fourteenth Respondent

DEPARTMENT OF CORRECTIVE SERVICES

Fifteenth Respondent

Application for interlocutory orders

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 10 JUNE 2003, AT 9.53 AM

Copyright in the High Court of Australia

__________________

MR P. ALFARO appeared in person.

HIS HONOUR: There is two applicants, is there not?

MR ALFARO: Yes. Your Honour, my wife, she could not attend because she needs to look after my dad. He is under medical supervision and she has to do that.

HIS HONOUR: Yes. I will take the other appearances.

MS T.M. NOONAN: Your Honour, I appear for the first, second, third, fourth, eighth and ninth respondents. (instructed by Mallesons Stephen Jaques)

MR P.M. STERN: Your Honour, I appear for the fifth, sixth and seventh respondents. I have been asked to mention the matter for Ms Cassimaty for the tenth and eleventh respondents, who has indicated she will abide any order of the Court. (instructed by Piper Alderman Lawyers)

HIS HONOUR: Yes, that is right, and the Court holds a certificate from the Deputy Registrar to that effect.

MR G.J. BARTLEY: Your Honour, I appear for the twelfth, thirteenth, fourteenth and fifteenth respondents. (instructed by Crown Solicitor for New South Wales)

HIS HONOUR: Now, is there any objection to Mr Alfaro appearing for himself and his wife? He needs leave for that.

MR STERN: We have no objection, your Honour.

MR BARTLEY: No, your Honour.

HIS HONOUR: Yes, Mr Alfaro. What is the nature of the application?

MR ALFARO: I have submission here, your Honour.

HIS HONOUR: Well, is there some summons?

MR ALFARO: No, your Honour, it is my submissions. I could not file the submission - - -

HIS HONOUR: Just a minute. Is there some initiating process this morning? Is there a summons, a motion?

MR ALFARO: No, this is - - -

HIS HONOUR: I know what that is.

MR STERN: There is a notice of motion, your Honour, which seems to have been filed on 6 May.

HIS HONOUR: 6 May.

MR ALFARO: That is right.

HIS HONOUR: Yes.

MR ALFARO: Yes, your Honour, as you can see, this is a notice of motion made to the Full Court on 6 May 2003.

HIS HONOUR: It is incompetent if it is made - - -

MR ALFARO: Sorry?

HIS HONOUR: It is incompetent if it is made to the Full Court, incompetent.

MR ALFARO: I requested the - - -

HIS HONOUR: By reason - just listen to me for a minute. It is incompetent by reason of section 16(a) of the Judiciary Act which says:

The jurisdiction of the High Court may be exercised by a Justice sitting in Chambers in the cases following:

(a) Applications relating to the conduct of a cause or matter -

and that is this case. So I am sitting in chambers pursuant to section 16(a) of the Judiciary Act.

MR ALFARO: Okay, and, your Honour, we object and oppose to the hearing today for the reason that we - - -

HIS HONOUR: What, the hearing of your own motion?

MR ALFARO: Sorry?

HIS HONOUR: You object to the hearing of your own motion?

MR ALFARO: Well, yes, your Honour, because - - -

HIS HONOUR: Why is that?

MR ALFARO: The respondents did not serve any documents on us until 6 June and we were not given proper time to prepare the proper submission to the Court in relation to the notice of motion. The respondents, they argue that the documents in relation to the notice of motion are irrelevant, and we say that we are. We say that the old documents that were filed in the Court that are all relevant to the notice of motion - sorry, to the - - -

HIS HONOUR: What you have to do is to get your application for special leave ready and that involves getting the application book ready.

MR ALFARO: Yes. Well - - -

HIS HONOUR: Now, if you are not happy about what is going in the application book, Order 69A rule 10(10) says that you can, as it were, prepare your own supplementary book, and I am sure the Registrar has told you that.

MR ALFARO: Well, he told us that - - -

HIS HONOUR: It happens from time to time.

MR ALFARO: Yes, but what is going to happen if we cannot refer to documents on the supplementary book and - - -

HIS HONOUR: Yes. Well, you can.

MR ALFARO: Sorry?

HIS HONOUR: You file the supplementary book and the Court looks at it.

MR ALFARO: Well, we know, your Honour, that the Full Court is not going to look to the supplementary book and - - -

HIS HONOUR: How do you know that?

MR ALFARO: Because they are going to only go by the application book reference. They are not going to go by - - -

HIS HONOUR: No, that is not true, Mr Alfaro. You do not understand the procedure and you are wasting the Court's time this morning, frankly. Now, if you wish to prepare your supplementary book under Order 69A rule 10(10), you are at liberty to do so, and this does happen from time to time and on leave applications applicants refer to those materials from time to time.

MR ALFARO: Your Honour, we put it to you that we will not be able to refer to documents in the supplementary book if they are not referred in the application book reference.

HIS HONOUR: Well, we are just going around in circles. I just said the opposite to you, Mr Alfaro, and I will not say it twice and I do not think you understand.

MR ALFARO: Your Honour, I do not think you are going to - you are acting fairly here. You are not acting fairly here, your Honour, because - - -

HIS HONOUR: Why is that, Mr Alfaro?

MR ALFARO: Sorry?

HIS HONOUR: Why is that, Mr Alfaro?

MR ALFARO: Your Honour, what you are trying to do here is to assist the respondents to conceal documents in relation to a bankruptcy that is fraudulent, that is illegal, and you cannot make legal an illegal action.

HIS HONOUR: No one is trying to make anything illegal or legal.

MR ALFARO: Well, I consider you are because what you are trying to do is to push me out of the Court as soon as possible and then - - -

HIS HONOUR: No one is pushing you out of - just listen to me. No one is pushing you out of the Court at all. I am inviting you to follow the ordinary procedures, which many other applicants for special leave do. Now, why you do not want to follow them I just do not understand, and these procedures encompass your sort of case.

MR ALFARO: Your Honour, I put it again to you that if we file the application books as they are now referred in the application book reference, we will not be able to refer to the documents that we have to present to the High Court for them to decide whether the actions of the respondents are legal or illegal.

HIS HONOUR: You have to persuade the Full Court that you should get special leave.

MR ALFARO: Well, that is what we are trying to do.

HIS HONOUR: You already got some leave from the New South Wales Court of Appeal, did you not?

MR ALFARO: Well, we are not going to pursue that because what they are trying to do is to stop us from presenting a claim against the respondents, against all the respondents. There are some damages in relation to a business, in relation to a bankruptcy that is, as I said before - - -

HIS HONOUR: I realise that, but all I am saying to you is you got some leave from the New South Wales Court of Appeal. You do not want that. You do not want to keep that, do you?

MR ALFARO: No, I am not going to do that.

HIS HONOUR: I see. Yes.

MR ALFARO: I put it to you that I filed my application for special leave within the 28 days, so it is our decision to request the special appeal to the High Court.

HIS HONOUR: Yes.

MR ALFARO: So I put it to you, your Honour, that the application book reference as it is at the moment will not let us present a proper case - - -

HIS HONOUR: All I can do is remind you again of the rule of Court I have referred you to and if you do not want to pursue that course, so be it.

MR ALFARO: Well, your Honour, as I said before, this - - -

HIS HONOUR: I think we are going around in - - -

MR ALFARO: - - - notice of motion was made to the Full Court, not to a single judge.

HIS HONOUR: And I am telling you that is incompetent.

MR ALFARO: Well, you are going to have to explain or give reasons why it is incompetent.

HIS HONOUR: I have referred you to it: section 16(a) of the Judiciary Act. Justices in chambers have been dealing with these sorts of disputes for 100 years, ever since the Judiciary Act has been passed.

MR ALFARO: Your Honour, since the listing of this matter - - -

HIS HONOUR: Now, just a minute, if a special leave application is being heard, you would be allowed 20 minutes to address orally. We are getting towards - - -

MR ALFARO: Are you saying to me that this is a special leave, is it?

HIS HONOUR: No, I am saying we are getting towards a 20-minute period, which is what I would impose on this sort of case, so I am just warning you.

MR ALFARO: Well, this is not an application - this is - - -

HIS HONOUR: I am just warning you.

MR ALFARO: This is not an application - - -

HIS HONOUR: I am just warning you that I am imposing a 20-minute period in this case.

MR ALFARO: Okay. So what you are trying to do is to make an order - - -

HIS HONOUR: No, you have - - -

MR ALFARO: - - - for the respondents to stop us from continuing.

HIS HONOUR: Just listen to me. There is no order that you cannot continue. You still have time to address the Court - another five or eight minutes or so. I am just alerting you so you are not cut off in midstream.

MR ALFARO: Your Honour, as I said before - - -

HIS HONOUR: And it is wrong for you to assume, as you tend to do, that judicial officers set out to obstruct you. It is just not right.

MR ALFARO: Your Honour, that is what you are trying to do. You are trying to say to me that we cannot present to the Full Court documents that - - -

HIS HONOUR: No, I am not prepared to sit here to be treated in that way. Now, is there anything else you want to say?

MR ALFARO: .....

HIS HONOUR: Yes, Ms Noonan.

MS NOONAN: Your Honour, the Court has before it the first, second, third, fourth, eighth and ninth respondents' outline of submissions.

HIS HONOUR: Yes.

MS NOONAN: Unless your Honour particularly wanted to be referred to them, I am content to rely on those - - -

HIS HONOUR: Very well.

MS NOONAN: - - - and the affidavit which was filed in support of those of Robyn Ann Chalmers sworn on 5 June 2003.

HIS HONOUR: Yes.

MS NOONAN: If it might assist the Court, the respondents for whom I appear contention is that having been afforded an opportunity to include the additional documents in a supplementary application book, the applicants have the opportunity to place that material before the Court and we say it is quite proper and in accordance with Order 69A rule 10 - - -

HIS HONOUR: Am I right in thinking that there is no dispute from your side, either you or your two colleagues, that this procedure under subrule (10) can be followed if the applicants wish to do so, the preparation of their own book?

MR BARTLEY: Yes, your Honour.

MR STERN: Yes, your Honour, we accept that.

HIS HONOUR: Yes. Well, there you are. Thank you. I do not think I need trouble either of you. Is there anything you want to add in response to that, Mr Alfaro?

MR ALFARO: Your Honour, as I said before, I was trying to say before we requested the Registry to advise us under what rule or any authority or Rules of the High Court the notice of motion was listed before a Judge. We have been requesting that since they gave us the date and the Registry refused to provide us with any information.

HIS HONOUR: Well, you know now. You know now.

MR ALFARO: Sorry?

HIS HONOUR: You know now.

MR ALFARO: Your Honour, what I am trying to say to you is that it appears to us that now you are going to make orders for cost against us for the respondents to stop the case. That is what appeared to us, that - - -

HIS HONOUR: The case is not being stopped. I do not think you understand.

MR ALFARO: Well, what they done to us before, your Honour, is they make this.....and they represent it and then they - what they did before was to make a bankruptcy notice in accordance with - - -

HIS HONOUR: No. At the moment I am disposed to make costs of the motion the costs of the special leave application, so that will solve that problem, I think.

MR ALFARO: I appreciate that, your Honour.

HIS HONOUR: Is there any opposition to that course?

MR BARTLEY: No, your Honour.

MR STERN: No, your Honour.

HIS HONOUR: Very well. I dismiss the motion filed 6 May 2003 and costs of that motion will be costs of the special leave application. Although the motion technically was incompetent in that it was attempted to make it returnable before the Full Court, nevertheless in argument I have endeavoured to get the substance of the matter under the Rules, which is the existence of Order 69A rule 10(10) involving the preparation of a supplementary book. The Court will now adjourn.

AT 10.09 AM THE MATTER WAS CONCLUDED