Aboriginal and Torres Strait Islander Commission v Commonwealth of Australia [2005] HCATrans 222 (21 April 2005)

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Aboriginal and Torres Strait Islander Commission v Commonwealth of Australia [2005] HCATrans 222 (21 April 2005)

Last Updated: 26 April 2005

[2005] HCATrans 222

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S122 of 2004

B e t w e e n -

ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION

and

COMMONWEALTH OF AUSTRALIA

Respondent

Summons

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 21 APRIL 2005, AT 8.29 AM

Copyright in the High Court of Australia

MS E.L. HINES: May it please the Court, I appear as a courtesy to the Court, as my firm remains the solicitor on record for the plaintiff pending my friend’s application today. (instructed by Slater & Gordon)

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth of Australia: If your Honour pleases, I think the correct way to announce my appearance is to say that with my learned friends, MS N.L. SHARP and MR B.D. O’DONNELL, I appear for the plaintiff and the defendant. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, that seems technically correct.

MR BENNETT: Your Honour, I have, by the way, one additional case which your Honour may find informative. I hand up two copies. It is Oreste Lodi v Oreste Lodi 173 Cal App 3d 628. It is a case where a person sued himself, claiming that the defendant had been purporting to administer all his property and was seeking to have the right to administer it himself. The claim was struck out, your Honour will not be surprised to hear, and there is a rather amusing judgment your Honour may find of assistance.

HIS HONOUR: You rely on the affidavit of Linda Aileen Glover?

MR BENNETT: Yes, I do. I read that affidavit sworn 6 April 2005. Before I ask your Honour for the orders sought in the motion, I certainly seek the first order, the substitution of the plaintiff.

HIS HONOUR: Is that really appropriate?

MR BENNETT: It is probably unnecessary.

HIS HONOUR: If an Act of Parliament has affected the substitution, there is not much point in the Court making a futile order to the same effect, is there?

MR BENNETT: Only to make sure the record of the Court correctly shows the parties.

HIS HONOUR: It would be appropriate to note what the Act has done but, subject to that, I am happy with all the orders except that I think order 4 might be better if it simply said, “The Court makes no order as to costs”.

MR BENNETT: I was going to suggest to your Honour that it may be more appropriate for your Honour to simply strike out the action on the basis that there is no matter, that once the parties are the same on both sides and the only substantive relief sought is declarations, Re Judiciary and
Navigation Act would rather suggest that there is no longer a matter. “Matter” involves something in issue between parties and, while my client may have a variety of manifestations, it cannot really have a dispute with itself in the manner required by the meaning of the word “matter”.

HIS HONOUR: Mr Solicitor, I am sure you and everyone else at the Bar table have many important things to do today, and I certainly have. I do not think we should waste time on these gossamer points. I am perfectly happy with order 3 as drafted in the summons and they will achieve the same effect. I have read the written submissions and I do not think I need hear you further, unless there is any particular additional point you wish to make.

MR BENNETT: I seek leave then in accordance with order 2 to file a notice of change of solicitor in Court.

HIS HONOUR: That leave is granted. Do you have a notice of a discontinuance?

MR BENNETT: Yes, your Honour, and I seek leave to file that in Court.

HIS HONOUR: That is granted.

MR BENNETT: As we have pointed out, strictly a plaintiff does not need leave to file a notice of discontinuance but, because of the unusual nature of it, it seemed desirable and we avoided the problem by seeking leave to file it in Court, which of course does require leave, and that subsumes the more general question. Subject to any interest your Honour may find in Lodi v Lodi - - -

HIS HONOUR: I will read it carefully a little later.

MR BENNETT: As your Honour says, there is no need for order 4 as such. Order 4 is really the absence of an order rather than an order.

HIS HONOUR: Thank you, Mr Solicitor.

By a summons filed on 8 April 2005 the Commonwealth of Australia seeks the following orders:

1. Pursuant to rule 21.07.1 of the High Court Rules 2004 the Commonwealth of Australia be substituted as the plaintiff in the proceedings;

2. The Court grants leave to the Commonwealth as plaintiff to file in Court a notice of change of solicitor;

3. The Court grants leave to the Commonwealth as plaintiff to file in Court a notice of discontinuance;

4. Each party bears its own costs in this proceeding.

The background is that on 2 April 2004 the Aboriginal and Torres Strait Islander Commission filed a writ of summons against the Commonwealth. A defence and a reply have since been filed.

The Commonwealth has filed a helpful affidavit of Linda Aileen Glover and helpful written submissions. These documents have explained that by reason of the enactment of the Aboriginal and Torres Strait Islander Commission Amendment Act 2005 the Commission has been abolished – Schedule 1 Part 1 item 1 – and in the proceedings in this Court the Commonwealth has been substituted for the Commission as plaintiff- Schedule 1 sub-item 195(1). The reasoning leading to those conclusions is not without complexity but it is sound. Its details need not be examined.

The purpose of the summons is to bring the proceedings into conformity with those conclusions. Because of the operation of the legislation it is not necessary to make order 1. The legislation has pre-empted it. It is sufficient to note that the Commonwealth has been substituted as plaintiff. Orders 2 and 3 are appropriate and the documents referred to have, in fact, been filed in Court. In particular, order 3 is appropriate since the Commonwealth has no further interest in pursuing the proceedings as plaintiff.

It is desirable to alter the form of order 4 as it appears in the summons by merely indicating that the Court makes no order as to costs. Accordingly:

1. The Court notes that the Commonwealth of Australia has been substituted as the plaintiff;

2. The Court grants leave to the Commonwealth as plaintiff to file in Court a notice of change of solicitor;

3. The Court grants leave to the Commonwealth as plaintiff to file in Court a notice of a discontinuance;

4. The Court makes no order as to costs.

Is there any other matter we need attend to? Ms Hines, I think the Court ought to express its gratitude to you for attending today. The Court will now adjourn.

AT 8.37 AM THE MATTER WAS CONCLUDED