Maher, Ex parte - Re Commonwealth Bank of Australia & Ors [2004] HCATrans 201 (16 June 2004)

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Maher, Ex parte - Re Commonwealth Bank of Australia & Ors [2004] HCATrans 201 (16 June 2004)

Last Updated: 17 June 2004

[2004] HCATrans 201

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M122 of 2004

In the matter of -

An application for Writs of Certiorari and Prohibition against COMMONWEALTH BANK OF AUSTRALIA

First Respondent

THE HONOURABLE JUSTICE FINKELSTEIN

Second Respondent

THE SHERIFF OF THE STATE OF VICTORIA

Third Respondent

Ex parte –

DENNIS MAHER

Applicant/Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO CANBERRA

ON WEDNESDAY, 16 JUNE 2004, AT 9.01 AM

Copyright in the High Court of Australia

__________________

MR R.D SHEPHERD: If the Court pleases, I appear on behalf of the first respondent. (instructed by Commonwealth Bank of Australia Legal Department)

HIS HONOUR: Is Mr Maher in Court?

MR SHEPHERD: He is not in Court, your Honour, and I have not seen him this morning.

HIS HONOUR: We know not, therefore, where he is or what the position is, is that right?

MR SHEPHERD: That is correct, your Honour.

HIS HONOUR: Have your instructors had any contact with him, Mr Shepherd?

MR SHEPHERD: No, they have not, your Honour. I have just been told, your Honour, that one of the court officers has just spoken with him. If it is convenient, your Honour, could his whereabouts be conveyed to you?

HIS HONOUR: Yes, please. Yes, Ms Musolino.

DEPUTY REGISTRAR: I have spoken to Mr Maher. He had indicated that he had misunderstood the information that had been conveyed to him and would not be able to get here for another hour. He did ask whether it would be possible for the matter to be dealt with with him on the end of a telephone line.

HIS HONOUR: Well, the matter having been brought on urgently at his request and 9 o’clock having been fixed as the time for it to be brought on, I am not minded to deal with it by telephone. Perhaps if I hear from Mr Shepherd what course he says I should take.

DEPUTY REGISTRAR: Yes, your Honour.

HIS HONOUR: Yes, Mr Shepherd.

MR SHEPHERD: In my respectful submission, the application should be dismissed with costs.

HIS HONOUR: And that most likely, Mr Shepherd, may lead to its being brought on again, I suspect, though quite when I am not sure because finding a convenient time will not be easy. It occurs to me that a way of dealing with the matter would be to put it over until 4 o’clock on Friday or if I were to say perhaps not before 3.30 on Friday. The Court will be sitting in Melbourne on Friday. I am presently minded to reserve the costs of today, though it would no doubt be a matter for Mr Maher to explain to me precisely why you should not have your costs of today. But it does seem to me that if I simply dismiss it Mr Maher will simply apply again, we will all be back again and we will have advanced nowhere. What would you say to my adjourning the matter over to not before 3.30 on Friday?

MR SHEPHERD: That appears to be a convenient course, your Honour.

HIS HONOUR: Then the application will be adjourned to not before 3.30 pm on 18 June 2004 in Melbourne. I will reserve the costs. I will certify for the attendance of counsel.

MR SHEPHERD: Now, on Friday would your Honour intend to hear the matter in its fullness or just to give directions? If your Honour were to take the latter course, we would not be seeking to file material, but if your Honour were to hear the merits of the matter, we would be seeking to file material in the interim.

HIS HONOUR: Well, Mr Maher applies for order nisi. I would propose to hear his application for order nisi. Either he makes out an arguable case for the grant of the relief which he seeks or he does not. If he makes out an arguable case, at least the ordinary practice would be to grant an order nisi returnable at some future time rather than proceed at once to the grant of order absolute in the first instance. Whether, as I suspect, Mr Maher may intend some interim relief should go is a matter for him to seek and you to resist or not as seems appropriate.

I would be presently minded to say that at the adjourned hearing the parties would be expected to confine their oral argument to not more than 20 minutes each side. I have not heard Mr Maher in relation to that direction. It is, therefore, not one which I give now. But you may care to order your affairs on the basis that a possible course for me to take will be to direct that the parties confine their oral submissions to 20 minutes.

MR SHEPHERD: Thank you for that indication, your Honour.

HIS HONOUR: Very well. The orders will be in the terms I have indicated. I will adjourn.

AT 9.08 AM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 18 JUNE 2004