Walker v Telstra Corporation [2007] FCA 419

FEDERAL COURT OF AUSTRALIA

Walker v Telstra Corporation [2007] FCA 419 KELL WALKER v TELSTRA CORPORATION LIMITED NSD 153 OF 2007

ALLSOP J

21 MARCH 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 153 OF 2007

BETWEEN: KELL WALKER

Applicant

AND: TELSTRA CORPORATION LIMITED

Respondent

JUDGE: ALLSOP J DATE OF ORDER: 21 MARCH 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. If any submission is to be put on behalf of Mr Walker on Thursday, 10 May 2007 that there should be an adjournment of the hearing of the notice of motion beyond the first week of June, those submissions must be supported by affidavit material filed and served no later than Monday, 7 May 2007. 2. The proceeding and the notice of motion are stood over for directions to 9.30 am on Thursday, 10 May 2007. 3. The costs of today are reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 153 OF 2007

BETWEEN: KELL WALKER

Applicant

AND: TELSTRA CORPORATION LIMITED

Respondent

JUDGE: ALLSOP J

DATE: 21 MARCH 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application to adjourn the proceeding and also to adjourn a motion brought by notice of motion filed by the respondent electronically on 28 February and dated 21 February 2007, generally. 2 The proceeding was begun by application, supported by a statement of claim, said by Ms Owens, the solicitor for the applicant, to have been drafted or settled by senior counsel in Sydney. 3 The respondent's motion, in short, seeks to either have the proceeding permanently stayed or to have the proceeding transferred either to the Supreme Court of Victoria or the Victorian District Registry of this Court. 4 The supporting material for the motion has been put on by the respondent and the fundamental submission which will be made by the respondent is that, in effect, the proceedings are an abuse of process or vexatious in that they are substantially identical to proceedings commenced in the Supreme Court of Victoria in respect of which orders have been made by at least a Master of the Court, which orders include orders for a significant amount of costs. 5 It has been said in the two directions hearings that I have conducted that, in effect, these proceedings are identical, are an abuse and are an attempt to litigate matters which are the subject of the Victorian proceedings and which are the subject of costs orders in Victoria. 6 Mr Walker is under arrest in Vanuatu. There is a degree of informality today about the evidence explaining his present position. Mr Peters, representing the respondent, has not taken any objection to that, if I may say so perfectly properly, for today's hearing. 7 It seems that Mr Walker, along with others, is charged with, in effect, a Vanuatu immigration offence, the seriousness of which is unlikely to detain him in Vanuatu even if he were found guilty. It is anticipated that his trial in that matter will be resolved within a month or so. 8 Mr Walker is also charged with conspiracy to murder. A Mr Tatar, a member of the crew of the vessel 'Retriever 1' of which Mr Walker was the master, has indicated that the evidence against Mr Walker in that respect is weak. Precisely what familiarity Mr Tatar has with the underlying facts or with the law of Vanuatu is not clear. In any event, it appears that Mr Walker has been charged with an extremely serious offence and there is no indication in the evidence when that matter will either come on for substantive hearing or, if there is to be a committal, when that committal will occur. 9 Ms Owens, who appeared for Mr Walker today at the directions hearing, indicated that she is without instructions both in the sense of the ability to have meaningful communications with Mr Walker and in the sense of not being placed in funds by him to act on his behalf and to retain counsel on his behalf. 10 Ms Owens put the submission that Mr Walker is unable to be here through no fault of his own. That may or may not be the case and may depend upon the validity of the charges in Vanuatu of which I know nothing. All I know is that Mr Walker has commenced a proceeding in this Court in February and that the respondent wishes to move the Court to have it stayed or otherwise dealt with as in the notice of motion and Mr Walker is presently unable, due to the circumstances to which I have referred, to take steps to defend his interests in the proceeding. 11 Mr Peters has not indicated any particular prejudice of the respondent and I do not understand there to be any, however, this matter simply cannot be suspended in limbo while Mr Walker is unable for an indefinite period of time to deal with the matter. 12 Mr Peters suggested that the motion be set down for hearing in April. There is some force in that submission, however, in all the circumstances, I am prepared to allow a period of time for Mr Walker to make a decision as to what he wants to do with the proceeding and the motion. The proceeding simply cannot be allowed to remain in a state of suspension while a conspiracy to murder charge is dealt with by the Vanuatu court system. 13 Mr Walker began this proceeding. The respondent says that it is an abuse and vexatious. It says that on the basis of a comparison of the proceedings with the Victorian proceedings. 14 What I propose to do is to adjourn the matter once more for directions until the week prior to the commencement of leave by me. I will be on leave from Saturday, 12 May. I will be in Melbourne in the Full Courts in the week commencing 7 May and if those appeals do not settle I will have a directions hearing in Melbourne on Thursday, 10 May at 9:30 am. That will obviate the need for any costs of a video link. 15 However, on that day, pursuant to orders I am about to make, Ms Owens will have provided the Court and Arnold Bloch Leibler with a further affidavit as to the position of Mr Walker. There should be no misunderstanding, however, that if the position is the same as it is today, that is, no information and no money, I will hear the motion of the respondent upon returning from leave early in June that is in the week commencing 4 June 2007. 16 If there is some specific position of Mr Walker that makes another date more appropriate, then I will hear the parties about that, but Mr Walker commenced these proceedings and as I have said, they are not going to remain in suspension indefinitely and the prompt disposition of the Court's business requires that the motion be heard, having given Mr Walker a further period of time in which to prioritise his affairs. 17 Therefore the orders that I make are: 1. If any submission is to be put on behalf of Mr Walker on Thursday, 10 May 2007 that there should be an adjournment of the hearing of the notice of motion beyond the first week of June, those submissions must be supported by affidavit material filed and served no later than Monday, 7 May 2007. 2. The proceeding and the notice of motion are stood over for directions to 9.30 am on Thursday, 10 May 2007. 3. The costs of today are reserved. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.