Gambotto V Samantha Gold NL S23/1995 [1995] HCATrans 121 (27 April 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney Nos S7 and S23 of 1995

B e t w e e n -

GIANCARLO GAMBOTTO

Applicant

and

SAMANTHA GOLD N.L.

Respondent

Office of the Registry

Sydney No S12 of 1995

B e t w e e n -

GIANCARLO GAMBOTTO

First Applicant

GIANCARLO GAMBOTTO as Trustee for GIANLUCA GAMBOTTO, ALESSANDRO GAMBOTTO and ANTONELLA GAMBOTTO

Second Applicant

ELIANA SANDRI

Third Applicant

and

BEACH PETROLEUM N.L.

Defendant

Application for directions

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 27 APRIL 1995, AT 10.16 AM

Copyright in the High Court of Australia

___________________

HIS HONOUR: Mr Gambotto, come forward.

MR GAMBOTTO: Thank you, your Honour.

HIS HONOUR: You appear for yourself in each of these matters.

MR G. GAMBOTTO: That is exact, your Honour.

MR J.D. HEYDON, QC: I appear with MR I.M. JACKMAN for the defendant in Gambotto v Samantha Gold, if your Honour pleases. (instructed by Blake Dawson Waldron)

MR R.J. WEBB: May it please the Court, I appear for Beach Petroleum in the proceedings against it, which is matter No S12. (instructed by Gadens Ridgway)

HIS HONOUR: Yes, Mr Gambotto.

MR GAMBOTTO: Your Honour, I would like to move firstly with the matter of Samantha, if I may, because it is rather a bit more complicated than the second matter, there being an appeal involved.

HIS HONOUR: There is a real problem there. Now, Mr Gambotto, you are seeking to appeal against an interlocutory judgment and you can only do that with the leave of the Court. Section 34 of the Judiciary Act so provides. In my view, your appeal is a nullity and I am proposing to direct that no action be taken on that notice of appeal and that if you propose to file an appeal book in the matter or take any further steps, then I will set the matter down for hearing to determine whether or not the notice of appeal should be struck out. But you would be well advised, Mr Gambotto, to seriously consider your situation there. You have the opinion of two Justices of this Court that you have no prospects of succeeding in the relief which you seek in that case. You can add to the opinion of those two Justices my opinion. Having read the transcript of argument in those cases, it seems to me that your prospects of finally succeeding in those cases are, as Justice Gaudron said on the last occasion, not fairly arguable.

Now, Mr Gambotto, you were here on an ex parte matter a few weeks ago and I expressed my concern about questions of costs. You are here today - you have Queens Counsel on one side, counsel in another matter, running up bills of costs, and it will make the amount of money involved in this litigation as nothing compared with the costs. Justice Gaudron made an order for costs against you, and if you get further orders for costs made against you you are going to be seriously out of pocket. It is a matter entirely for you, but after what Justice Gaudron said and what Justice Deane said, you should seriously consider your position in relation to this matter.

So, having said that, so far as the Samantha matter is concerned, in my view, prima facie, it requires leave to appeal and if you are proposing to proceed with the appeal, then I will have it set down before me so that the parties can argue whether or not the appeal has been properly filed in the Court. That will mean further costs if you are unsuccessful. But at this stage I would not be prepared to put the matter before a Full Court of Justices where, in my view, at least prima facie, the appeal would be struck out as incompetent. I would not waste the Court's time doing that.

Now, I have said that about that. In relation to the other matter, I have read your affidavit. It raises the same questions and at the moment it is not ready for trial; it is not ready to go before the Full Court. The only way it could go before the Full Court is if I or some other Justice of the Court was prepared to state a case, either under section 18 of the Judiciary Act or Order 35 of the Rules of the Court. I would need a lot of convincing before I would take up the Full Court's time by stating a case in respect of the issues involved in that, particularly having regard to what Justice Gaudron and what Justice Deane have said about the matter. It can go to trial in the ordinary course if you want to pursue that litigation, it can be tried by a judge and if you are dissatisfied with the decision of the judge, then there can be an appeal against it in the ordinary way. But the business of this Court is such that the time of the Full Court cannot be taken up with appeals and with other matters which border on the frivolous. And I say that with great respect to you. I know you have had a major win in your litigation but, as Justice Gaudron said, this point is not fairly arguable and Justice Deane, on the earlier occasion, when the matter was ex parte said that the proceedings that you had instituted will inevitably fail if the only ground on which relief can be claimed are those which have been propounded before him. That being so, you must seriously rethink your whole situation.

Now, Mr Gambotto, I have studied the papers carefully in all these files. I have read your affidavit with care. I have let you know at the outset what my views are - at least they are prima facie. You have got the right now to persuade me that the prima facie views I have expressed are wrong, but I do not propose to have my time taken up by a long or involved argument about it. The matter seems to me to be really too clear for argument and you have already had the opinion of two Justices of this Court in relation to the matter. Now, having said that, you follow your own course of procedure.

MR GAMBOTTO: I thank your Honour for explaining things so carefully - - -

HIS HONOUR: Mr Gambotto, it concerns me. It really upsets me to see a person without legal qualifications in this Court. You are not without means, you have got two sets of counsel here, a Queens Counsel on the other side, costs probably running into several thousand dollars on an application like this. They are costs that can be recovered against you. It is very upsetting for a Justice of this Court to see a person attempting to find a way through the minefield of the law and mounting up costs in cases where two Justice of this Court have in fact said to you that you must inevitably fail, that the point is not fairly arguable. So that being so, Mr Gambotto, you proceed as you want to and I will listen earnestly to what you have to say. I can be persuaded to change my mind. It happens quite frequently, Mr Gambotto, but this seems to me to be a very clear case. But you carry on.

MR GAMBOTTO: First of all, if I may, I will spend a couple of second in dealing with the matter of the appeal, your Honour. The appeal was filed on the basis it was filed because of the fact that the copy of the Judiciary Act from which I took my right to appeal was an old outdated copy. However, very fairly, the Registrar of this Court pointed out to me the two sections that are now within the appeal section from a Justice of this Court and when the Registrar did so, I then looked at the matter and according to me, your Honour, by my reading of the transcript - and that does not mean to say, your Honour, that it is in any way to overcome your Honour's points as just made - my reading of the matter was that Justice Gaudron exceeded - I am leaving aside Justice Deane because Justice Deane is now a foregone conclusion.

HIS HONOUR: You discontinued the action.

MR GAMBOTTO: I discontinued it, so I will not even say a word regarding that. In so far as Justice Gaudron is concerned, I understand the meaning of interlocutory and I also understand the meaning of final. Now, the point being this, your Honour, that I can well follow your Honour's direction and file, like I said to the Registrar of this Court, an application for leave to appeal but your Honour has pre-empted my application by pointing out to me that, having read the transcript of what happened before Justice Gaudron, there does not seem an arguable point.

However, Justice Gaudron disallowed my argument in so far as the interlocutory injunction but she went one step further in my eyes. She said to me quite clearly, and it is part of the transcript, that I was in the wrong court. Now, when Justice Gaudron says that I am in the wrong court she, of course, is referring to my whole case, not just to the interlocutory injunction application. I am saying this to your Honour with respect because the moment Justice Gaudron says to me I am in the wrong court, of course Justice Gaudron is pre-empting my whole case before this Court.

HIS HONOUR: Except she did not - did she say that you were in the wrong Court? I thought, from recollection from reading the transcript, that she merely said that you could bring it in another court. You could have brought it in the other courts.

MR GAMBOTTO: She referred to the wrong court at the same time as saying that I had not brought an application within the time of section 701 of the Corporations Law and she prefaced the - - -

HIS HONOUR: Have you got a copy of the transcript?

MR GAMBOTTO: No, I am sorry, your Honour, I think Justice Gaudron was dealing with my application to amend the summons and - I apologise to your Honour, I did not bring it in.

HIS HONOUR: But that raises another point. I thought that you had agreed to add Resources Limited as a party to this litigation.

MR GAMBOTTO: Your Honour, can I just finish the point that I am trying to make, if I may. I will come back to that other point.

HIS HONOUR: Yes.

MR GAMBOTTO: It is a very valid point, subject to certain matters. Your Honour, I did not come to this Court to present to this Court vexation argument. I came to this Court because I thought I had a valid constitutional argument. Now, as to whether it came out as valid in the interlocutory proceedings it is another matter. However, what I am saying to your Honour is this: by my looking at the Constitution and my reading of it - and, of course, I am nowhere near the professional eye that is given to any document like the Constitution as from a professional man. However, I pride myself in knowing what words mean or what they are supposed to mean - - -

HIS HONOUR: I understand that, but have you read Cole v Whitfield, for example?

MR GAMBOTTO: The precedent?

HIS HONOUR: Yes. The Court's judgment in Cole v Whitfield.

MR GAMBOTTO: Regarding section 92?

HIS HONOUR: Section 92, yes.

MR GAMBOTTO: Well I, very kindly at that, by the solicitors for Samantha, was pointed out certain judgments and my approach to that, your Honour, even though it may be deemed to be a bit lackadaisical or even bordering on the disrespectful, I suppose, is this, your Honour, that in my mind, if I find there is enough cause in the Constitution for me to institute an action like I did on the basis of interlocutory proceedings, I should not put my full case to the Court.

HIS HONOUR: Except you have to put the case to the Court to make an arguable case, but even if you did not, my understanding of section 92 - and obviously it is the same view that Justice Deane and Justice Gaudron hold - is that this point is not even arguable. Members of the Court change their views, they can be persuaded by argument, but it just seems so far removed from what section 92 is now directed at, as interpreted in their recent decisions of the Court, that it really does seem an impossible task that you have set out to achieve, Mr Gambotto.

MR GAMBOTTO: Your Honour, I fully appreciate and thank your Honour for what your Honour has just said to me. And what I am going to say now is not going to be meant as in any way disrespectful to the Court or to your Honour. First of all, let me say something about the interlocutory proceeding before Justice Gaudron. The way the proceedings were conducted: I quoted a section 92 precedent directly related to a matter such as mine.

HIS HONOUR: You relied on the Banking Case.

MR GAMBOTTO: Yes. The Banking Case is a very similar matter to mine, your Honour, and in my ignorance, your Honour, whatever was pointed out by the solicitors for Samantha, on one hand, yes, it had bearing on my section 92 argument because of the later decisions of this Court. However, the later decisions of this Court were not based on a matter in any way similar to the Banking Case or to my case. Your Honour, I do not know whether I did that - - -

HIS HONOUR: I understand, but - - -

MR GAMBOTTO: When I read the Banking Case last year because of the other proceedings it struck me that there may be something in the argument that I would propose to put to the Full Court. Now, your Honour will say to me, rightly at that, "Why didn't you come before Justice Gaudron and put that same sort of argument to establish your case as to whether you had an arguable case in so far as section 92, in spite of the later precedents?", and what, in my mind, operated at the time when I was before Justice Gaudron was this, that the section 92 argument in so far as the Banking Case was strikingly similar to my case - not to my argument; to my case. Therefore, I sort of offered that Banking Case precedent regarding section 92 which was, your Honour, not only an argument held as valid by Justices of this Court but it went before the Privy Council, as your Honour well knows, and was - - -

HIS HONOUR: I accept all that, and I think you would have had a hard task to hoe even under the old section 92 doctrine and you have probably got more assistance from the Peanut Board Case at an earlier stage and some of the compulsory acquisition cases concerning primary products that the Court decided: James v Cowan and cases such as that. But even under those cases, I think you would have really been pushing to get section 92 to your support. But since Cole v Whitfield, which was a unanimous decision of seven Justices of the Court, your task now seems well nigh hopeless, as both Justice Deane and Justice Gaudron said when they dealt with your application for injunction.

But it still comes down to this, that whether your arguments are good, bad or indifferent, it is an interlocutory order and to get it before the Full Court you need leave. So, if you are going to pursue an appeal against what Justice Gaudron has done, then it seems to me that you have to file an application for leave to appeal and go through the written case procedure and apply for leave out of time. Now, having regard to what those Justices said, one could only think that your prospects of getting leave are very, very low indeed, if they exist at all.

In addition, there does not seem to be anything to injunct any more in that particular case. The shares have been acquired. Whatever order could be made, the relief that you seek does not seem to be appropriate.

MR GAMBOTTO: That is exactly the point that I made to the Registrar of this Court, your Honour. When arguing her proposed order in so far as Justice Gaudron's decision I made a point that (a) Justice Gaudron, by putting me into the wrong jurisdiction, had taken away from me the argument that I was in the right jurisdiction, in the first instance, and that the actions of the respondent company had been carried out, subject to my being in the right jurisdiction, against the expected behaviour of the respondent in such a case.

Now, you see, your Honour, I know I am taking your Honour's time and I apologise for that. I think in my mind it is very clear - one thing is very clear, your Honour. If Justice Gaudron had refrained from making the comment she did about my being in the wrong jurisdiction, then I would 100 per cent agree with both your Honour and the Deputy Registrar of this Court in saying that I need leave to appeal. The fact that she went beyond the interlocutory decisions that were being sought and ascribe my position in the Court as being in the wrong jurisdiction, then that fact, in my eyes, is - - -

HIS HONOUR: But she never said at any stage that you were in the wrong jurisdiction. Will you just excuse me? Have I overlooked something in the transcript, Mr Heydon?

MR HEYDON: Your Honour, around page 16, running on to page 20 of the transcript of 20 February 1995, there is discussion in which Mr Gambotto wishes to rely on section 701(6) of the Corporations Law and Justice Gaudron, several times, makes the point that that subsection was not the subject of his application to this Court and she also makes the point, for example, at the top of page 20, that she has no power to act under that subsection. "It is a power given to other courts, not this Court." And she makes the point on page 22 about line 40 - - -

HIS HONOUR: I appreciate that but she said nothing at all about him being in the wrong court.

MR HEYDON: No, no, she was content obviously enough with the proposition that any constitutional point that was available to be run could be run in this Court.

HIS HONOUR: Yes. Well, that is so, Mr Gambotto. I think Mr Gambotto is asking for a copy of your transcript, Mr Heydon.

MR HEYDON: I am sorry, I had not realised that.

MR GAMBOTTO: I am sorry, your Honour, I did not know so much hinged on this, but I should have expected it actually. If your Honour would pardon me for a minute I will find the relevant ruling.

HIS HONOUR: You see, what her Honour said to you at page 18 was that your statement of claim makes no reference to section 701(6). She never said anything about you being in the wrong court.

MR GAMBOTTO: With great respect, your Honour, I am sorry. It is the pressure thar unwillingly by your Honour is on me at this point of time. Her Honour said clearly that I was in the wrong court. I remember the words that were said: "You are neither in the right court nor have you brought your application".

HIS HONOUR: Is what you have got in mind at the top of page 20 where her Honour said:

I have no power to act under section 701 of the Corporations Law, no power at all. It is a power given to other courts, not to this Court.

MR GAMBOTTO: No, your Honour. I am sorry, I was not referring to that. Look, it was stupidity on my part but I did not bring the transcript and I had it marked.

HIS HONOUR: That is all right.

MR GAMBOTTO: I think the Registrar perhaps could help me in this matter. There is correspondence regarding the very point that I was trying to make to your Honour referring to the relevant part of the transcript.

HIS HONOUR: But Mr Gambotto, the argument is getting off track a bit. The central point is that whatever reason Justice Gaudron gave for her decision, her decision was an interlocutory order. That is the beginning and end of the matter. You cannot appeal from an interlocutory order. Section 34 of the Judiciary Act says so. So, if you want to appeal against her order, you have to, first of all, get leave to appeal from the Full Court.

MR GAMBOTTO: Your Honour quite rightly said to me a few seconds ago that I have very little chance of succeeding with such an appeal and I feel that if - I have the most complete trust in your Honour's assertion. I am not here to dispute it.

HIS HONOUR: I am often a dissenter in the Court, Mr Gambotto. Other Justices may take a different view. But at the moment you have Justice Deane's view about the matter, you have Justice Gaudron's view about this particular point and, for what it is worth, you have my prima facie view about the matter.

MR GAMBOTTO: Your Honour, if I may beg your Honour's indulgence?

HIS HONOUR: Yes, carry on.

MR GAMBOTTO: I would ask your Honour not to refer to Justice Deane's decision. It has been withdrawn.

HIS HONOUR: I appreciate it is withdrawn but it raised the same point. You came up for an ex parte injunction and Justice Deane said to you that you must "inevitably fail, relying on the constitutional ground, to invalidate section 701." He said that on that occasion. You may be able to persuade him on a Full Court that he was wrong but, prima facie, that is his view; prima facie, Justice Gaudron has expressed a view; prima facie, I have expressed a view about the matter. Well, you start from some way behind when the point has been brought before Justices of the Court and they express views about it and strong views. Justice Gaudron says that it was not fairly arguable and Justice Deane said, it will "inevitably fail".

But you have to make up your mind about this. The point is that this was an interlocutory order and this appeal cannot go before the Full Court just on your filing of a notice of appeal. Now, the defendants, for their own reasons, understandably, I suppose, have not moved to strike out the notice of appeal. The business of the Court is such that the Court cannot allow a matter to go forward on a notice of appeal which, on its face, seems clearly to be a nullity. That being so, what I propose to do, Mr Gambotto, is to make a direction that if you propose to proceed with the appeal against Justice Gaudron's order that the matter is to be listed before me at some future date to determine the question whether the appeal has been properly instituted.

I would prefer it if the defendants would move to strike out the notice of appeal, and we would have an argument about it; it could be decided. But if they will not do it then, under the inherent jurisdiction of the Court and to protect the Court's own process and its own business, I would direct the question to be argued on a directions hearing.

Now, once that is done, once I take that view of the matter, I do not see any point in proceeding with this current summons. You are not going to get an expedited hearing of that appeal because there is a preliminary question to be determined.

MR GAMBOTTO: Exactly.

HIS HONOUR: And in relation to the other matter, Mr Gambotto, as I said to you earlier, it is not ready for trial and the only way it could get before the Full Court would be for me to state a case and having regard to the prospects of success, I would not propose to state a case. I would allow the matter to go to trial in the ordinary course and it may not take long before a single Justice or it may take long but, irrespective of that, an appeal could be brought against the decision of the trial judge, which would be a Judge of this Court. And serious question would have to be given as to whether or not the matter should not be remitted to the Federal Court for determination.

MR GAMBOTTO: I have heard what your Honour has said and I thank your Honour. I am not here to oppose your Honour's findings in the matter, I am - - -

HIS HONOUR: It is not for me to give you advice but you should seriously rethink this whole matter before costs mount up. On the ex parte application, Justice Deane advised you to act swiftly to discontinue your action so that the defendants would not run up the costs and hopefully, that action, from your point of view, was withdrawn before it was served, was it?

MR GAMBOTTO: Well, it was withdrawn at the same time as being served. I served it two days before by mail but, of course, it did not reach them until it had got to them. Your Honour, all I have to say to your Honour in so far as the appeal on the interlocutory matter before Justice Gaudron is this, that because of the idiosyncrasies of the circumstances of that hearing, and I am referring now to timings and filings and so forth, other questions came up before her Honour on that occasion. The matter took quite some considerable time because of the other matters; not because of the - it would have been very short on the interlocutory basis.

Now, I understood what your Honour said and I do not, your Honour, propose to file an application for leave to appeal. And I am saying this, not out of disrespect; I am saying this because I feel that the appeal was properly filed - and I heard your Honour when your Honour said to my that in your Honour's view and direction a minute ago there should be an application for leave to appeal.

Now, the questions that came before Justice Gaudron, because of the idiosyncrasies that I pointed out to your Honour, directly stem from the Constitution of the Commonwealth. Now, I did not come here prepared to argue that, but seeing that your Honour has kindly pointed out to me what my obstacles are in proceeding in the way I do, I will point out to your Honour - - -

HIS HONOUR: Just before you do, one thing you should bear in mind is what practical result are you going to get, in terms of proceeding with the appeal against the interlocutory order in any event. To begin with, the shares have been transferred out of your name into the offeror company and Justice Gaudron's judgment does not affect the final relief that you seek in the action.

MR GAMBOTTO: I am aware of that, your Honour. I am aware of that. In my very ignorant point of view, and unprofessional at that, very unprofessional, what I am saying to your Honour is this, that the main brunt of what came up before Justice Gaudron is my point to Justice Gaudron that she had jurisdiction to deal with my application to amend the summons in so far as using the Corporations Law, relevant section 701. The Justice said to me quite clearly on a number of occasions throughout the transcript that she had no power to deal with the section, that I had not made an application not even asking for the section to be deemed as part of my case, and so forth and so on. There are quite a few pages and Mr Jackman very kindly pointed them out to your Honour a few minutes ago. What, in my eyes, applies is this, your Honour: first of all I will say this to your Honour that section 161 of the Corporations Law - or section 160, I do not remember now, I have not marked it, but it is there anyway - tells me that a corporation is to be treated as a natural person for the purposes of the law - not of the Corporations Law, for legal purposes.

My writ and statement of claim in the matter - and I know it is not before your Honour at this point of time, but it will get down to what I am going to say about Justice Gaudron - is that my application was consciously made under the original jurisdiction as detailed in section 75 of the Constitution of the Commonwealth.

HIS HONOUR: Which paragraph?

MR GAMBOTTO: Paragraph (iv). Now, I know it does not mention corporations, that is why I prefaced what I said to your Honour by saying that the Corporations Law deems corporation to be a natural person and therefore, because of precedents before this Court relating to the power of the Commonwealth to deal with registration of companies and denying the Commonwealth power to register companies, it is still a State matter. Therefore, if a company is incorporated in a certain State, and I am a resident of another State, according to me I have access to subsection (iv) of section 75 of the Constitution to institute an action before this Court.

HIS HONOUR: Are you familiar with Howe's Case? The T & G v Howe Case?

MR GAMBOTTO: No, I am not familiar with that. I just read the Constitution, your Honour. It may very well be that precedents before this Court are that I am not swimming in the right water. If I am not, your Honour, then it is useless for me to go on. If I am - - -

HIS HONOUR: You should read T & G v Howe, I think.

MR GAMBOTTO: If I am, your Honour - and your Honour is plainly saying to me that I am out of my water - then I go further in the Constitution and read section 77. That section, in my eyes, makes redundant a number of provisions in the Judiciary Act when they purport to deal with the powers of this Court.

HIS HONOUR: You would need almost a constitutional revolution to get up on your 75(iv) point because this Court held, I suppose 60 years ago, in T & G v Howe, that a corporation could not be a resident for the purpose of that paragraph of the Constitution, and the fact that the legislature deems that to be a natural person cannot affect the interpretation of the Constitution. So you have very considerable difficulties there; not to say that you could not succeed, but you would have to overturn what has been the law for 60 or 70 years.

MR GAMBOTTO: Your Honour, I did not come here to - - -

HIS HONOUR: No, I appreciate that. We are a long way from the point. Irrespective of your feelings about what Justice Gaudron said or did, you cannot escape the fact that the order she made was an interlocutory order. You do not propose to seek leave to appeal against it and if you are going to persist with the appeal, then I will have to have it set down to determine the question whether or not the appeal has been validly instituted. If you want to argue that, you can come along at the risk of costs to yourself, Mr Gambotto.

MR GAMBOTTO: Your Honour has given me a determination a few minutes ago.

HIS HONOUR: No, I have not given you a determination. I have told you what seems to be the prima facie case. After I hear full argument, you may convince me that my prima facie view is wrong. But what I am saying to you is that at the moment it seems to me quite clear - I put it as strong as that - that this is an interlocutory order and that you need leave to appeal against it. Now, at the moment, it is filed in the Court, but before any steps are taken to set down the appeal this preliminary question has got to be determined. The time of the Full Court should not be wasted by hearing an application which may turn out not properly before them. At the moment, that appears to me to be the case.

MR GAMBOTTO: Your Honour, I am fully appreciative of what your Honour has said, even so far as a few minutes ago as to determination. What I was trying to explain to your Honour, rather than argue, was the fact that, according to me, what her Honour did precludes me from going on with my writ. I may very well be wrong, your Honour, but I am the mover of the writ - - -

HIS HONOUR: If you want to amend your writ, and you say her Honour is wrong, then what you should do is to seek the consent of the other side. If they will not consent, take out a summons and seek to amend and we will have an argument about it.

MR GAMBOTTO: Your Honour has been quite kind to me and very patient with me and has let me put, from what your Honour has said, I would construe - your Honour did not say so but I would construe - as a vexatious argument. Your Honour has not said that; I said it. So the position is clear, your Honour.

HIS HONOUR: Law

is not an exact science and people can hold different views and the view that a person holds fairly strongly at one stage, some time later, after that person hears argument, they may even be convinced that the view that they held was erroneous. There is a famous illustration in the Law Reports where Justice Wilson decided a case one way on legal professional privilege; and the very next case he held that his own decision was wrong. He was in the majority in both cases but they came to opposite results.

MR GAMBOTTO: Your Honour, I fully appreciate what your Honour is saying to me. As a matter of fact, if I may just take your Honour back to my previous case before this Court, that in which your Honour participated, I had a decision by three Justices of the Court of Appeal of New South Wales against me and, of course, I came before this Court - I came on my own - I am not saying that the arguments that I put to the Court were the right arguments that swayed your Honours to go for me. Clearly, in your Honours' minds, the matter was clear and beyond argument and the judgment of the Court, irrespective of what I said to the Court, I think to a great extent, came out in my favour. Now, I did not get any great ideas out of that win and I did not start calling myself the High Court suitor, after that win. I knew exactly what was going on and I have no qualms about my capacity. All I am saying to your Honour is this, that when I approached this Court, rightly or wrongly, based or not based on previous precedent, I am looking and reading the Constitution of the Commonwealth. I am a citizen of the Commonwealth. If I read it wrongly, I read it wrongly; if I read it correctly, I read it correctly.

Now, I brought some matters before this Court because I thought that, not on a professional basis but on my reading of the Constitution, I had a right of redress. I stated my grounds as badly as I did in my statements of claim. Then it came to my not, due mainly, I may add, to my unprofessional approach to the matter, I came before this Court on an interlocutory basis and because of what had happened before it reached the hearing, a number of issues were raised. Therefore, from the number of issues that were raised, I got a clearer picture of what was going on with my case, not so much on the interlocutory basis case but on the whole writ and statement of claim.

Your Honour, I appreciate what your Honour said to me on a previous occasion in this Court and today, and it is that perhaps consideration should be given or I should look at the position of bringing in other parties, and your Honour mentioned earlier, if your Honour can recall today, the application before Justice Gaudron to bring in Resolute Resources as a second defendant. I have considered that, your Honour. Now, your Honour, very compassionately at that, has pointed out questions of costs. I am not a rich man so I understand what your Honour is saying and I appreciate what your Honour is saying. That is why, based on my own understanding between what the Constitution said, what I did last year in regard to the other case, and what I did before Justice Gaudron and what happened before Justice Gaudron, I formed a clear opinion in my mind that on a point of principle, your Honour - I am more a man of principle rather than a man of other intents - I would have thought that it would be wrong for me to bring before this Court second defendants like the companies that are now holding the shares that belong to me rightfully in my eyes, because it would go against my own principles.

So what your Honour has said to my in this respect, in respect of Justice Gaudron's decision - and I understood interlocutory and I understand it - what your Honour said to me faces me with the situation that I either break principle by saying - my principles, not your Honour's principles, of course - I either break my principles by saying that what her Honour did to me was wrong in so far as finality was concerned, not only....., but also I now, if I follow what your Honour has just said - and your Honour is quite right in saying that to me; is acting out of not only judicial prerogative but also of compassion for an unprofessional man - what your Honour has just said to me is this, that as matters stand, the relief being sought in my statement of claim is not proper relief because of the fact that somebody else holds my shares.

Now, the whole gist of the matter, your Honour, boils down to this, that what I am saying to your Honour or to the High Court, which does not only include your Honour, it also includes Justice Gaudron, I came to this Court on the understanding that I had about the Constitution. If there are cases in the past that impinge upon my understanding, I am the first one to admit as to the validity of such cases. At the same time, the only difference about what your Honour said to me and what I said and presented to Justice Gaudron in so far as section 92 precedents is the fact that I was not prepared to put to her Honour my arguments as to section 92 because I thought sincerely and not with second intents or anything like that, bona fide as the old Latin said, I thought on a bona fide basis that I did not have to argue the point of interlocutory injunction on the basis that her Honour expected me to.

Now, that is why I never put my argument to Justice Gaudron because I thought that on the basis I put the precedent regarding section 92, the Banking Case, and the fact that her Honour did not listen to anyone else about what I did say about section 92, I thought I had a right to that interlocutory injunction. Now, your Honour will say, but there is not only the fairly arguable point being discussed by Justice Gaudron, there is also the balance of convenience. To me that word is a strange word, your Honour. I am not here to criticise her Honour for using it. I know it is something that is weighed up by the Court on occasions such as this, but at the same time I thought that I had completely taken care of that by my affidavits, whereas it went by the board, but anyway I am not here to criticise that because I am not here to appeal against Justice Gaudron's decision.

What I am here to say to your Honour is this, that it would be against my principle, after considering all the issues that have arisen since my statement of claim was filed with this Court, to bring anybody else in even though her Honour Justice Gaudron gave me permission to do so, right, because my point being that at the point I filed my writ and statement of claim the shares were still mine. I thought that by coming to this Court, on the strength of what I just said a couple of seconds ago to your Honour about section 77, I would have a right to stop the other party from proceeding with the acquisition.

Her Honour said quite clearly, "You haven't". Her Honour said quite clearly, "You have no right to the injunction". Her Honour said quite clearly, "You are in the wrong court." Therefore, I put to your Honour this, that knowing exactly what your Honour just said to me, even before your Honour said it - in the last few weeks I have been thinking about it - your Honour may appreciate what I am saying, right? I am not trying to pre-empt your Honour's decision, I am just, you know, trying to look into them. In the last few weeks I said to myself, "What is the use", and I said it to the Deputy Registrar quite clearly via correspondence, "What is the use of me dealing with interlocutory decisions by Justice Gaudron when Justice Gaudron said to me that I am in the wrong court and that I didn't abide by the timings of the section, 701, whatever it is." Now, once I do that then I have to join other parties. I am not prepared to join other parties because I will walk away from this Court, whatever your Honour decides today - and already a decision has been made about this matter of Samantha - - -

HIS HONOUR: No, I have not made any decision about Samantha. I am wanting to know what you are going to do. Now, we have got to bring this discussion to - - -

MR GAMBOTTO: An end.

HIS HONOUR: - - - an end. And Mr Gambotto, what I have before me is a summons, or two summonses, or three summonses, in effect, or two summonses in respect of three matters in which you seek matters to be heard together by the Full Court and for the hearing of those matters to be expedited. Now, I have listened to what you have said; I have read your affidavit and I am certainly not going to make those orders. For the reasons I have outlined to you, it does not seem to me that your appeal is properly brought and therefore I would not expedite the hearing of that matter before the Full Court unless there was, first of all, a preliminary determination that the appeal was in proper form. That being so, you are going to have to make up your mind whether you want to proceed with that appeal or not. If you want to proceed with the appeal then I will have to set the matter down to determine the question before a single Justice of the Court as to whether the appeal is properly before the Court. That is another hearing, another expense.

If you succeed on that application, if you convince me that my prima facie view is wrong or you convince some other Judge, then the appeal can proceed in the ordinary way. In respect of the other matter, that is the Beach matter, it can only get before the Full Court on a stated case in some form or other and I would not propose to state a case for the Full Court in that matter at this stage. In fact, if it is to go to trial a serious question arises as to whether it should not be remitted to the Federal Court.

But now, I have said that, I think you are going to have to make up your mind what you are gong to do. At the moment I am disposed to - if you are not prepared to withdraw your notice of appeal, then I think I should set this matter down for hearing to determine the issue whether the appeal is properly before the Court. Now what do you say about that?

MR GAMBOTTO: Your Honour has been quite clear about what your Honour's view of the matter - - -

HIS HONOUR: It need not come before me. It may not necessarily come before me. It might come before Justice Gummow or the Chief Justice or somebody else; Justice Deane. The matter has to be finalised. Something has to happen one way or the other. We just cannot let the matter lie there in the list. If you want to proceed with your appeal, well, you are entitled to take every step but there is this preliminary question that has to be determined first. Now, to say the least, it is surprising why you would want to pursue the appeal. It does not seem to me, from a practical point of view, you have anything to gain by it. If you want to pursue your action in Samantha, her Honour's judgment will not stop you seeking the final relief you seek in Samantha. If you want to amend in Samantha to seek 701(6) relief, her Honour's judgment will not stop you there. You can file a summons to amend if the other side will not consent.

But I think that is where we are at. Now, I have listened to you for over an hour and I think something has to be - we have just got to bring the matter to a head now. Is there anything you want to say or suggest to me?

MR GAMBOTTO: There is nothing at all I want to say about Samantha. I thought I had made myself clear, your Honour, that if I have to take certain steps, not out of disrespect to the Bench, I will not take them and therefore, of course - - -

HIS HONOUR: But the steps that you were talking about, I thought, was to join Resources.

MR GAMBOTTO: No, no. You see, being an unprofessional man, I listen to what your Honour is saying and I understand what your Honour is saying, and your Honour is telling me about certain precedents that go against, apparently - without having read the precedents. I understand and believe what your Honour is saying.

HIS HONOUR: Yes. Well, you can go and read them all yourself and I am prepared to give you as much time - well, not as much time as you want but to give you a fair amount of time to read them to see whether you want to persist in it. But in the meantime costs are running up on the other side. You do not get counsel like Mr Heydon and Mr Webb and Mr Jackman cheaply.

MR GAMBOTTO: Your Honour, I heard your Honour quite a long time ago this morning, I mean, so that is why I said to your Honour that I will not file an application in respect of matter S23. I will not file an application for leave to appeal in respect of S23 as filed at the present time. I will not come before your Honour and argue the merits of my appeal because I think that your Honour has made it quite - - -

HIS HONOUR: It would not be a question of arguing the merits of your appeal, it would be simply a question as to whether or not the appeal was against the final order or an interlocutory order. If the order of Justice Gaudron is an interlocutory order, then the appeal is bad.

MR GAMBOTTO: Exactly, your Honour. This is not brought as a matter of argument. Your Honour has said to me that and has also said to me at an earlier stage this morning that in your Honour's view, following the view of Justice Gaudron, the matter may be properly a matter to be brought before another court, to be sent before another court and in so far as that is concerned, your Honour, I said to your Honour before and I will just repeat it and be done with it, I said to your Honour before that I will not allow myself to be downgraded to another court; not because I think I am entitled to this Court because of my personality, your Honour, because I, in good faith, brought the action before this Court because I thought this Court was empowered to hear my case and to deal with my case notwithstanding the fact that the Corporations Law says that the proper courts are the Federal Court of the Commonwealth or the Supreme Court of Western Australia.

HIS HONOUR: No, but I think you may be misunderstanding something, Mr Gambotto. In one sense your case is properly before this Court or, at least, it seems to me it is prima facie within this Court. I do not know what the other side - they seem to have accepted that it is properly before this Court so far as the constitutional question is concerned. But under section 44 of the Judiciary Act the Court has a discretion to remit matters to the Federal Court for determination and so, it is not a question of you are not being properly before us. In one sense, you are properly before us but the Court says - and this is the intent of the legislation - the time of the High Court should not be taken up hearing these matters; they should be sent off to the Federal Court for - - -

MR GAMBOTTO: Or the Court of Petty Sessions.

HIS HONOUR: Yes.

MR GAMBOTTO: Your Honour, I understood this and therefore - - -

HIS HONOUR: I am sorry, I thought you may not have.

MR GAMBOTTO: - - - by my proceeding with either the appeal as followed or with the application to appeal that your Honour has kindly suggested, because of section 44 of the Judiciary Act, which I deem invalid but, of course, I am not bringing before your Honour precedents. I hate precedents actually. I read the Constitution. The way I read it, whether it is right or wrong, I pay for my mistakes. It is not that I came here to ask for - - -

HIS HONOUR: You do not come here as amending it, you are not asking for mercy.

MR GAMBOTTO: Exactly. So, whether I made a mistake or not, it is my own mistake. I thank your Honour for your compassion. I will not file an application for special leave to appeal against Justice Gaudron's decision because I thought, again, on a matter of principle that the appeal, as filed, was a proper appeal in view of her Honour's decision regarding the wrong jurisdiction.

Now, plainly, your Honour is saying to me that your Honour sees, prima face, that it may properly be a matter for the lower court, the Federal Court. Again, although I appreciate and understand what your Honour just said and thank your Honour for saying it, it again comes up against my principle that - - -

HIS HONOUR: I did not say I have even got a prima facie view about. I said it is a matter that would have to be given consideration. In fact, having regard to the issues in it, it is the sort of matter that, if left to me, I would not remit because I think a Justice of this Court could probably deal with the legal argument fairly shortly and there is no outstanding questions of fact as far as can see unless the 701(6) point is brought into it in some way. But as it stands, I do not think I would be disposed to remit the main action to the Federal Court. But that is only my view and it is not a question that arises at this stage.

MR GAMBOTTO: No, of course not. But, your Honour, you see, your Honour just again, two seconds ago, said to me that unless section 701(6) is brought before your Honour or before whoever, "We'll look into the matter", again, it comes up against my assertion that section 701(6) is properly a matter for this Court to decide upon even though the Corporations Law limits the jurisdictions to Federal or Supreme Court of the State involved. So, again, your Honour, we come up to a point of principle. So, I will not - not because of disrespect to your Honour but because I want to sleep with myself and I will not do that. So I will not proceed with the appeal because your Honour has properly said to me that, prima facie, it is instituted wrongly - filed wrongly. I will not file an application for leave to appeal. And then the question remains as to whether my writ and statement - - -

HIS HONOUR: Can we at least get this clear: will you undertake then to withdraw the appeal because if you - - -?

MR GAMBOTTO: If your Honour says so, yes.

HIS HONOUR: No, no, I am not suggesting anything because what I have to do - at the moment we have an appeal in the Registry. Now something has to be done one way or other about it. So, I either have to set it down and we have a determination whether it is properly lodged because of the interlocutory nature of it or apparent interlocutory nature of it, or you withdraw it. If you discontinue the appeal, we have no problems. Now, I only put it to you on that basis: either I am going to have to set it down to determine that question or you withdraw it. Now, one or the other, and it is a matter for you to make up your mind. You do not have to make up your mind now, Mr Gambotto.

MR GAMBOTTO: Your Honour has quite rightly pointed out to me that the more I come before this Court the more I take the Court's time and the more I take my opponents' time at a great cost to me.

HIS HONOUR: Indeed.

MR GAMBOTTO: Now, I am not stupid, your Honour. So, what I am saying to your Honour is this, that the moment I say to your Honour, "I am withdrawing my appeal", right - - -

HIS HONOUR: Yes.

MR GAMBOTTO: And I am withdrawing my appeal, then my writ and statement of claim fails because the writ and statement of claim asks for relief that is no longer available to me on the basis of the writ and statement of claim.

HIS HONOUR: Well, that is not quite right, is it, because the last paragraph 6(c) or (d), or one of those, one seeks a declaration that the acquisition is invalid and the other paragraph seeks damages, does it not, from recollection?

MR GAMBOTTO: Well, I mean, I thought I would - - -

HIS HONOUR: You should be more familiar than me with it.

MR GAMBOTTO: I thought I would put as many fish into the tank as I could in the hope of catching something.

HIS HONOUR: You seek a declaration that what has been done is invalid and ineffective and you also seek an order that you obtain damages.

MR GAMBOTTO: Yes.

HIS HONOUR: So, there are still things to be litigated in your action if you want to.

MR GAMBOTTO: But your Honour, your Honour has quite rightly pointed out to me that I come before your Honour, yes, with damages but the point is not the damages, the point is my shares. The point of my shares your Honour made quite a while ago in saying that my shares now belong to somebody else.

HIS HONOUR: That may depend upon whether or not it was all invalid and what is the effect of it. You have that question, I suppose - well, that is still a question in Gambotto v WCP Limited. Whatever happened there ultimately? What is the situation there?

MR GAMBOTTO: Nothing that I know of.

HIS HONOUR: Have you still the shares?

MR GAMBOTTO: I have still got the share certificates, your Honour. But I understand the import of the judgment, fully appreciate that. As to whether the import of the judgment goes as far as being known to certain people or not, I do not know. It may be against the law to punch somebody on the nose but once somebody has been punched on the nose, you know, the damage has been done.

HIS HONOUR: Exactly.

MR GAMBOTTO: And I do not think any court in this world can remedy a swollen nose. So, that is the point, your Honour. Now, your Honour, can I just say something more about the appeal and the writ and statement of claim?

HIS HONOUR: If you are thinking of withdrawing them, and judging by your hesitation, it seems to me - - -

MR GAMBOTTO: No, no, pardon me for interrupting.

HIS HONOUR: - - - you should carefully think, you see. Do not feel under any pressure at all. You do not want to go away tomorrow morning and think differently; think, "Why did I do this" or "Why did I do that."

MR GAMBOTTO: The pause, your Honour, is due to your Honour reminding me of certain things that have happened.

HIS HONOUR: I can see - do you want an adjournment for a short while?

MR GAMBOTTO: No, I will try and get away from it, your Honour. As I said, regarding - - -

HIS HONOUR: You seem a bit distressed, Mr Gambotto. Do you want an adjournment for a little while.

MR GAMBOTTO: No, it is a distress that is not caused by this matter, your Honour, it is a distress caused by - - -

HIS HONOUR: The other litigation, yes.

MR GAMBOTTO: The less is said about it the better.

HIS HONOUR: I think I will adjourn for five minutes.

MR GAMBOTTO: No, no, I do not want to keep your Honour's time unnecessarily. In reference - I will now finalise the argument as against Samantha Gold. I made my position clear with the two possibilities of appeal. In reference to the writ and statement of claim, I understood what your Honour has said and I thank your Honour for your kindness in saying it. In other words, in saying to me, in effect, that the matter can be properly brought once a case is stated, as your Honour calls it - I do not even know what that means - but once a case is stated it can be properly brought before the Court because the Court has jurisdiction of what I allege and your Honour has kindly pointed out to me - - -

HIS HONOUR: It can be tried as a Judge at first instance in this Court.

MR GAMBOTTO: - - -can somebody.....under my claim and so for and so on. Now, the point that I would make in that respect is this, that my application before your Honour this morning is bring this matter to a head after what happened with Justice Gaudron. Now, let me just assume, your Honour, that what your Honour has said about bringing the writ and statement of claim before a single Justice has not been said. Let us just assume that and let us assume that your Honour instead had said that the matter can be properly brought before the Full Court in Canberra for the constitutional allegations that I am making. In view of the fact that there has been a withdrawal of the appeal and a denial on my part to proceed with an application for leave to appeal, under the assumption I just made about the Full Court, I would not feel confident before the Full Court that I was taking a proper case. As a matter of fact, because of Justice Gaudron's decision, whether interlocutory or final it does not matter, I would feel very uncomfortable and therefore I would never - again, against my principles - go before a court, one member of which has already made clear what the position is. Now, whether I misconstrued that or not - - -

HIS HONOUR: But judges frequently make statements. I gave you the illustration of Justice Wilson deciding a case one way and the very next case in the same volume of the Commonwealth Law Reports he changed his mind. So, I would not let that concern me. In any event, I think I have made my position clear as to what I propose to do. After all, all I have before me is, in effect, a summons for expedition and a summons that two matters be heard, and that is easily disposed of. But I was rather looking at the overall future of this case.

MR GAMBOTTO: Of course, your Honour.

HIS HONOUR: Particularly so you could reconsider your whole position in relation to the matter. Well, you have heard what I intend to do in relation to the summons. I do not think there is anything further I want to put to you. Is there anything further you want to say about it? I have given you an hour.

MR GAMBOTTO: No, not at all, your Honour. The things that I said to your Honour were mainly said not as arguments.

HIS HONOUR: No, I understand. You are explaining your position and so on. So, you will have to work out your future plans and whether you want to discontinue or what you want to do. It will be a matter for you.

MR GAMBOTTO: I will discontinue the whole thing, your Honour.

HIS HONOUR: Anyhow, you give it some time but remember that costs are likely to mount up. But, anyway, thank you very much for your assistance, Mr Gambotto.

MR GAMBOTTO: Now, your Honour, may I just say something else about the second matter before your Honour?

HIS HONOUR: Yes, certainly.

MR GAMBOTTO: The second matter before your Honour was filed before the Form 602A was sent to the dissenting offerees. As such, I would have thought that because of the nature of the filing - the statement of claim, may I add, your Honour, is not very clear but it does not pinpoint a service of the Form 602A because it had not taken place. There was just a promise at that stage and I acted on that promise, not impeaching the service of the Form 602A but trying to stop in my very unrepresented way the defendant company from going ahead with that. Now, I do not know what your Honour thinks about that sort of thing and I suppose your Honour will come back to me and say, "That's legal advice you're seeking" - - -

HIS HONOUR: It does seem to raise the same points, does it not, as the Samantha matter? The constitutional points are basically the same.

MR GAMBOTTO: Yes, but one basic difference is, as I said to your Honour, in Samantha's Case - - -

HIS HONOUR: I know.

MR GAMBOTTO: - - - the 602A had been served. In Beach's Case they had not been served. So, in other words, the misdeed had not been done as yet when I filed and served my statement of claim.

HIS HONOUR: But the fact is that at the present time in Beach the respondent, in effect, says it has acquired your shares and that your - - -

MR GAMBOTTO: There have been some communications to that effect.

HIS HONOUR: Yes. So, the position there is now the same as in Samantha. Although you started your actions at different stages, the net result is that they are both now in the same position.

MR GAMBOTTO: Exactly.

HIS HONOUR: Yes. Well, it is a matter for you but the same points seem to be involved. If one case is good, so is the other, and if one case is bad, it would seem that so is the other, would it not, unless there is some separate argument that you have.

MR GAMBOTTO: No, the only separate argument is what I put to your Honour, that I sought relief from this Court before the service of the notice. Now, if I understand what your Honour is saying, what your Honour is saying: I have been punched on the nose anyway, whether I - - -

HIS HONOUR: You are seeking - the final relief seems to be the same that you are seeking in both actions, or basically the same, it would seem, from recollection. It is a matter that you will have to make up your mind about in relation to that as well. Thank you, Mr Gambotto. Now, Mr Haydon, you have heard what I have had to say. Is there anything that you want to say about anything?

MR HEYDON: No, we do not oppose the course your Honour has indicated.

HIS HONOUR: Yes. Mr Webb?

MR WEBB: That is our position as well, your Honour.

HIS HONOUR: There are two summonses before me. I propose to dismiss the summons, the reasons for dismissing them have been made plain on a number of occasions during my discussion with Mr Gambotto who appreciates the reasons for dismissing the summons. No useful purpose will be served by giving more formal reasons.

Are there any other orders?

MR HEYDON: Just for a costs order in relation to our summons, your Honour.

MR WEBB: We seek costs on our summons, your Honour.

HIS HONOUR: Mr Gambotto, what do you say about that?

MR GAMBOTTO: Nothing to say, your Honour. When it comes to costs, if somebody loses, somebody has to pay the piper.

HIS HONOUR: Yes, Mr Gambotto, I am afraid that is right. The summonses are dismissed with costs. I thank you, again, Mr Gambotto, for your assistance and the way you have handled the matter. Thank you very much.

MR GAMBOTTO: Thank you, your Honour.

AT 11.40 AM THE MATTER WAS CONCLUDED