FEDERAL COURT OF AUSTRALIA

Alcock v Commonwealth of Australia [2009] FCA 1252

ROBERT JAMES ALCOCK v COMMONWEALTH OF AUSTRALIA and STATE OF VICTORIA

VID 435 of 2008

RYAN J

30 october 2009

MELBOURNE

THE COURT ORDERS THAT:

1.         The applicant file and serve by 4 December 2009 all written submissions on which he wishes to rely in response to the written submissions respectively filed on 26 October 2009 on behalf of the first respondent and on 27 October 2009 on behalf of the second respondent, and the oral submissions made this day on behalf of each respondent.

2.         There be a further hearing on 11 December 2009 of the motions on notice respectively dated 16 October 2009 and 8 October 2009.

3.         The costs of all parties of this day be reserved.

Note:      Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                          A question has arisen as to whether to adjourn two motions on notice in this matter, one filed by each respondent and dated 16 and 8 October respectively, each of which seeks, in essence, the summary dismissal of these proceedings under the mechanism in s 31A of the Federal Court of Australia Act 1976 (Cth). The fact which might have made it appropriate to adjourn the motions is that the applicant has caused to be filed and served in the High Court of Australia an application for the removal of these proceedings to that Court.

2                          I have come to a clear view that the hearing of the respondent’s motion should not be adjourned until after the hearing of the applicant’s application to the High Court for removal under s 40 of the Judiciary Act 1903 (Cth) (“the Judiciary Act”), of the matter, or part of the matter, the subject of the present proceedings.  The considerations which have led me to exercise the court’s discretion in that way include the fact that the application for removal was not made until 28 October 2009, long after the applicant filed his amended statement of claim on 11 September 2009, and it seems to me that, had it been contemplated at that time, that the matter was in a fit state for the High Court to consider its removal into that Court. The respondents could have been notified to that effect before they took out motions in this court which have, for some time, been well known as returnable today.  It is clear that the mere making of an application under s 40 of the Judiciary Act does not preclude this Court from proceeding to consideration of interlocutory, or indeed even final, issues in a proceeding in relation to which the removal application is made.

3                          There is, I consider, a real likelihood on the present state of the pleadings, as I understand them, that the High Court, on the removal application, might express views similar to those indicated by Gummow and Kirby JJ inLink v NSW Minister for Primary Industries and Others [2008] HCA Trans 307, which was heard on 26 August last year.  In the light of that probability, I consider that the matter could be advanced by at least the hearing today of argument addressed to the sufficiency of the amended statement of claim filed on 11 September 2009. 

4                          Some indication has been given by Mr Fitzgibbon of counsel, for the applicant, that, if the proceedings were adjourned today, there would be costs thrown away, and that, of course, would occur on both sides. However, that could be avoided if the Court were today at least to hear argument in support of and opposition to the motions, even if the Court should find itself not in a position to give judgment before the removal application comes before the High Court.  I indicate parenthetically that no date has yet been appointed by the High Court for the hearing of that application, and informal inquiries suggest that it is unlikely to be entertained by that Court before the end of this year. 

5                          In those circumstances I consider it, as I said, an appropriate exercise of this Court’s discretion to proceed today with the hearing of the motions.  If that causes any embarrassment in the events which have happened to the applicant, in the sense that further time is required for the presentation of submissions in response to those seeking the striking out of the present pleading, that can be accommodated by a facility for the provision of written submissions, and, if necessary, an opportunity to speak to those submissions.  However, for the reasons that I have indicated, the matter will not be adjourned and I will proceed now to deal with the substantive motions.

Associate:

Dated:         5 November 2009