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High Court of Australia Transcripts |
Office of the Registry
Sydney No S7 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
GUMMOW J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON TUESDAY, 1 AUGUST 1995, AT 10.17 AM
Copyright in the High Court of Australia
MR J.D. HEYDON, QC: I appear with MR I.M. JACKMAN for the respondent. (instructed by Blake Dawson Waldron)
HIS HONOUR: There are several matters I should raise directly with both sides. The first one is really directed to you, primarily, Mr Gambotto: are you wishing to proceed with your attempted appeal against the orders made by Justice Gaudron refusing you those interim injunctions?
MR GAMBOTTO: I do, your Honour, yes.
HIS HONOUR: The second question then is directed to you, primarily, Mr Heydon: is there any objection to competency on your side?
MR HEYDON: Yes, there is, your Honour, by reason of non-compliance with section 34 of the Judiciary Act. We submit that it was an interlocutory order, not a final order and that special leave is needed.
HIS HONOUR: Yes. The third question is a more practical one in a way: is there any reason why this case is not, more or less, ready for trial?
MR HEYDON: As far as we can see, it is ready for trial because there is no disputed question of fact. The allegations of fact in the statement of claim which were part of the writ are admitted. What is not admitted are the constitutional points which Mr Gambotto wishes to raise. They are points only of laws?, as we understand them.
HIS HONOUR: Yes. Do you agree with that, Mr Gambotto?
MR GAMBOTTO: Yes. On the face of it, yes.
HIS HONOUR: It seems to be better to get on with the final hearing.
MR GAMBOTTO: I would have subscribed to that view, your Honour, even as early as when we appeared before Justice McHugh on 27 April.
HIS HONOUR: Yes. Now, is there any further evidence you would want to put on; any more affidavits you would want to put on?
MR GAMBOTTO: No. The only issue I would raise today on the subject of this hearing is - - -
HIS HONOUR: I am just exploring this in a preliminary way, you understand, just - - -
MR GAMBOTTO: Yes, of course. Rather than argue orally, I have prepared a written submission, not in the form of an affidavit, which - - -
HIS HONOUR: Yes. I was asking you any more affidavits you want to put on about the trial, to get ready for trial?
MR GAMBOTTO: Not, I think, necessary because I think I will stand on my constitutional points.
HIS HONOUR: All right. I will come back to what you just raised with me in a minute. How long would it take to try? A day would be sufficient, would it not?
MR HEYDON: Yes, I would think so, your Honour.
HIS HONOUR: Do you agree with that, Mr Gambotto?
MR GAMBOTTO: Yes, I would agree with that. As a matter of fact, I would even - unless there is a big case put on by some of the constitutional entities. Some of them have indicated that they wish to appear.
HIS HONOUR: Yes. Is that right?
MR GAMBOTTO: The Commonwealth and - - -
HIS HONOUR: Mr Gageler appeared at one stage, did he not, for the Commonwealth?
MR GAMBOTTO: Yes.
HIS HONOUR: 78B notices have been given under the Judiciary Act, is that right?
MR GAMBOTTO: Yes, your Honour.
HIS HONOUR: And he was excused, was he, on the footing he would come back if there was a trial?
MR HEYDON: I do not think he was formally excused but I think the position of the Commonwealth is that they will come back if there is a trial. They do not wish to be involved before that time. Could I also indicate that I think it may be the case that one or two of the States have indicated they may wish to come for the trial and some have said they do not. I can get details on that in a moment.
HIS HONOUR: All right. Have you got your diary with you, Mr Gambotto?
MR GAMBOTTO: Any day is suitable to me, your Honour. I am very retired.
MR HEYDON: No, but I can remember its contents.
HIS HONOUR: That can mean several things, I think. I would hear it myself and I would have to fit it in one day in Sydney. It would be preferable, I think, from your point of view - everyone's point of view. Mr Gambotto is free generally virtually. What is your position the week commencing 18 September, Mr Heydon?
MR HEYDON: Free. That is a Monday, is it, your Honour?
HIS HONOUR: Yes.
MR HEYDON: I am free on the first four days: Monday, Tuesday, Wednesday and Thursday.
HIS HONOUR: The case would really go to trial then on the statement of claim and the admitted facts. I will not make any formal order at the moment but I propose then to set the Samantha Gold matter down for trial before myself at 10.15 am on Monday, 18 September 1995.
There is a related matter of Beach Petroleum which is not in the list this morning.
MR GAMBOTTO: I was just going to raise that, your Honour. I do not know how I would approach them to be part of the trial.
HIS HONOUR: Yes. Would there be any objection on your side if I subsequently directed that the trials be heard together?
MR HEYDON: No, your Honour, the pleadings of the two cases appear to be identical but for the fact that they are different companies.
HIS HONOUR: Yes, different share parcels and so on.
MR HEYDON: Points of law are formulated in the same way, word for word.
HIS HONOUR: Yes. Who was appearing in the Beach matter?
MR HEYDON: Mr Webb appeared on the last occasion in front of Justice McHugh. I forget who the solicitors are. Gadens Ridgeway are the solicitors, Miss Berliner, I believe.
HIS HONOUR: There are two possibilities, of course: one is to try and get them to come up later today which would save time and expense; the second one is to direct the Registry to put the other matter in the list for directions designed to connect it up for 18 September and to put it in the list for some directions at a later day.
MR HEYDON: We could endeavour to have a telephone call made now to see if we could get either Mr Webb or Miss Berliner to come.
HIS HONOUR: Would that be suitable to you?
MR GAMBOTTO: I am sorry, I could not hear what - - -
HIS HONOUR: Mr Heydon is volunteering to try and contact Mr Webb who appears for the Beach people to get them to come up to Court now.
MR GAMBOTTO: By all means, your Honour, yes, I think it would be very expedient.
HIS HONOUR: Yes, I think so too.
MR GAMBOTTO: If I may, your Honour, at this point: there is also a third matter that has caused me quite a few problems of service. I may be able to solve the problems before 18 September and I wonder whether - - -
HIS HONOUR: What is the problem of service?
MR GAMBOTTO: The defendant in that writ is an overseas company and there was - - -
HIS HONOUR: In which one? The defendant in which one?
MR GAMBOTTO: Matter No S40 of 1995.
HIS HONOUR: That is a third case, is it?
MR GAMBOTTO: Yes, it is a third matter exactly on the same basis.
HIS HONOUR: And you have not been able to serve them?
MR GAMBOTTO: Well, according to me, your Honour, I have and I hope to be able to point out to the legal representatives of the defendant company that they have been duly served. I refrain from doing so, so far, because of the fact that I did not really know - - -
HIS HONOUR: They say they have not been served so there is no defence on their side, I suppose, obviously. There is no statement of defence filed.
MR GAMBOTTO: No, they have not filed any appearance even.
HIS HONOUR: Yes. Well, I think you will just have to do the best you can with that, Mr Gambotto. As a practical matter, I cannot see that one being ready by 18 September unless you speak to them and make some urging - - -
MR GAMBOTTO: I shall try - - -
HIS HONOUR: - - - which bears some fruit.
MR GAMBOTTO: Thank you.
HIS HONOUR: Has your solicitor gone off to try and contact Gadens?
MR HEYDON: Yes, one of them has.
HIS HONOUR: That leaves the application you have made to strike out the purported appeal from Justice Gaudron as defective because Mr Gambotto would need leave. If you are going to have a trial on 18 September, Mr Gambotto, is there any practical point in pressing on with interlocutory appeals? I mean, the main match is going to be on 18 September. Is there any point in frittering your energies on other matters in the meantime? It is entirely up to you but there is an objection to competency, and I see you have got some written submissions there.
MR GAMBOTTO: It is my submission, your Honour, that the objection to competency is placed on a very shaky footing.
HIS HONOUR: All right.
MR GAMBOTTO: However, I will rely upon your Honour to - - -
HIS HONOUR: Well, perhaps you have better think about it. Can you think about that while we see what response comes forward from Gadens Ridgeway on the other matter. What do you think is a suitable time, Mr Heydon, to adjourn?
MR HEYDON: A quarter to eleven, perhaps, your Honour. We will try and get hold of Mr Webb as well. It may not be possible to do so.
HIS HONOUR: It may not be possible. We may have to come back later today. We will what is happening at a quarter to eleven. I will adjourn until 10.45.
AT 10.30 AM SHORT ADJOURNMENT
UPON RESUMING AT 10.54 AM:
HIS HONOUR: Yes, Mr Heydon, is there any result?
MR HEYDON: Mr Webb is free on 18 September, so that is the most important thing. Miss Berliner was rung. She is seeking instructions on attendance on 18 September. She has to get them from Piper Alderman in South Australia because Beach are using those solicitors. She does not anticipate being able to get them in a short period of time. She, apparently - this is a proposition I would rather have preferred her to put them me - but she does not find it convenient to come this afternoon. My proposal would be, with respect, that we proceed with the fixture of the Gambotto v Samantha matter for the 18th and, in effect, if Beach wish to come, let them come.
The next point, if I may just itemise a few points, we would undertake to notify the Attorneys-General of that date so that the Commonwealth, in particular, and anyone else who wants to come are aware of it.
HIS HONOUR: Yes. You might speak to the registry about that.
MR HEYDON: Yes, very well. Mr Gambotto did raise one question with me. The question was would the Court expect something in the nature of a book to be prepared. The only relevant order seems to be Order 36 rule 22 which does not quite deal with what has happened this morning. It says that:
The party entering a proceeding for trial -
and that is not quite what has happened -
shall deliver to the proper officer two copies of the whole of the pleadings and of the issues, or of such other documents as show the questions for trial.
In view of the fact that the pleadings collectively are about four pages, it did not really seem necessary for Mr Gambotto to do that. We will do it, if your Honour wants us to, but the documents are in the file.
HIS HONOUR: I will dispense with compliance with Order 36 rule 22.
MR HEYDON: If the Court pleases. Perhaps I should leave it to Mr Gambotto to say something about the written submissions, but he told me that he did not wish to proceed with that matter, in view of the early trial date.
HIS HONOUR: Yes. I really want to have someone up here, inconvenient or otherwise, from the firm of solicitors acting for Beach.
MR HEYDON: I think the best thing to do is to pass that on.
HIS HONOUR: At 2 pm.
MR HEYDON: If your Honour pleases.
HIS HONOUR: I do not know of anything to be more convenient than to come here, frankly.
MR HEYDON: One sees your Honour's point.
HIS HONOUR: I will defer making any formal orders in this matter until 2 pm until I see what happens with the Beach Petroleum people. Perhaps your solicitor might tell them now.
MR HEYDON: Yes, your Honour. In the event that the morning is a little more convenient for them, might we have leave to raise the matter with your Honour's associate so as to bring it back before 2 pm?
HIS HONOUR: Yes, certainly.
MR HEYDON: If the Court pleases.
HIS HONOUR: Now, there remains Mr Heydon's application, really, in relation to the interlocutory appeal from Justice Gaudron. You wish to pursue that, Mr Gambotto, that appeal?
MR GAMBOTTO: I would. The point of the matter is that I have had a chat with Mr Heydon about the issue and I do not think he would be against the matter being stood over generally for mention if needed.
HIS HONOUR: I could stand it over to the trial.
MR HEYDON: Yes.
HIS HONOUR: The other thing I wanted to ask: would you be wanting to put your submissions at the trial in writing in advance of the trial or would you prefer to do - - -
MR GAMBOTTO: Yes, that may be expedient, your Honour.
HIS HONOUR: Would you prefer to do it simply orally?
MR GAMBOTTO: No, that may be expedient to put it in writing.
HIS HONOUR: Then you can speak to the written material at the trial.
MR GAMBOTTO: Yes, your Honour. It would simplify matters for your Honour seeing that I am an unrepresented person.
HIS HONOUR: Yes. As long as it is, on both sides, kept short. The more succinct it is the more effective it is, that is the first rule - - -
MR GAMBOTTO: It is one of my failings, your Honour.
HIS HONOUR: I had no idea. It was just a general comment by me based on experience.
MR GAMBOTTO: Thank you, your Honour.
HIS HONOUR: These are the orders I propose to make:
1. Enter action No 7 of 1995 for trial in Sydney before myself at 10.15 am on 18 September.
2. Any written submissions by the plaintiff, not exceeding 10 pages, be filed and served on or before 4 September 1995.
3. Any written submissions by the defendant, not exceeding 10 pages, be filed and served on or before 11 September.
4. Stand over to the trial the objection by the defendant to the competency of the notice of appeal dated 3 March 1995.
5. Note that the solicitors for the plaintiff and the Deputy Registrar will consult as to such notification of the trial date to the Attorneys-General as is appropriate.
6. Costs of today be costs in the action.
7. Reserve the question of the trial concurrently with this action of action No S12 of 1995.
MR HEYDON: Can I just propose one amendment? In order 5, your Honour said "Note that the solicitors for the plaintiff and the Deputy Registrar" - - -
HIS HONOUR: Yes, I should have said "defendant".
MR HEYDON: Other than that, we are content with those orders.
HIS HONOUR: All right.
MR GAMBOTTO: So am I, your Honour.
HIS HONOUR: Very well. Is there any further response from Beach Petroleum solicitors?
MR HEYDON: No, no further response. We will resume communications immediately.
HIS HONOUR: All right. Well, I will make orders 1 to 6 as indicated, and I will read them again in a minute, and I will deal with proposed order 7 at 2 pm or earlier.
MR HEYDON: If the Court pleases.
HIS HONOUR: Just let me read them out again. Just make sure you have a note, Mr Gambotto.
1. Enter action No S7 of 1995 for trial in Sydney before myself at 10.15 am on 18 September.
2. Any written submissions by the plaintiff, not exceeding 10 pages, be filed and served on or before 4 September 1995.
3. Any written submissions by the defendant, not exceeding 10 pages, be filed and served on or before 11 September 1995.
4. Stand over to the trial the objection by the defendant to the competency of the notice of appeal dated 3 March 1995.
5. Note that the solicitors for the defendant and the Deputy Registrar will consult as to such notification of the trial date to the Attorneys-General as is appropriate.
6. Costs of today be costs in the action.
And I will adjourn until 2 pm or earlier, as indicated.
AT 11.09 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY
UPON RESUMING AT 11.27 AM:
MR R.J. WEBB: In the Beach Petroleum matter, may it please the Court, I appear for Beach Petroleum. (instructed by Gadens Ridgeway)
HIS HONOUR: Yes. You appear for the plaintiff as yourself again, Mr Gambotto?
MR GAMBOTTO: Yes.
MR WEBB: Your Honour, my friend Mr Heydon, has relayed to me your Honour's comments and I have instructions to accept fixture of this matter for hearing on 18 September and, additionally, the orders and directions that I understand have been made are convenient and achievable from the point of view of my client.
HIS HONOUR: Very well. What was that order again, Mr Heydon?
MR HEYDON: I think it was Order 36 rule 22.
HIS HONOUR: In addition to the six orders I made in your matter, Mr Heydon, I should have ordered a seventh: "Dispense with compliance with Order 36 rule 22." Will you add that to yours, Mr Gambotto. Then I should add 8 - these are in your matter, Mr Heydon and Mr Gambotto, the Samantha matter: "This action be tried concurrently with action No S12 of 1995.
Then in the other matter, the Beach Petroleum matter, I make the following orders:
1. Enter action No S12 of 1995 for trial in Sydney before me at 10.15 am on 18 September;
2 Any written submissions by the plaintiff, not exceeding 10 pages, be filed and served on or before 4 September 1995;
3. Any written submissions by the defendant, not exceeding 10 pages, be filed and served on or before 11 September;
4. Costs of today be costs in the action;
5. Dispense with compliance with Order 36 rule 22;
6. This action be tried concurrently with action No 8 of 1995.
There remains the question of 78B notices in your matter, Mr Webb.
MR WEBB: I understand from Mr Heydon that your Honour has directed that he confer with the Registrar about notices to appropriate Attorneys.
MR HEYDON: I think the position is - actually may I just - I am sorry to inform Mr Webb of these things in your Honour's presence. Both Mr Gambotto and us gave more or less simultaneously section 78B notices. The Commonwealth has indicated it wants to come. Some Attorneys have indicated they do not want to come. One or two or them have yet to indicate a final position and it is on that topic that we will be consulting with the Registrar.
HIS HONOUR: I cannot really dispense with the giving of 78B notices.
MR GAMBOTTO: They have been served.
HIS HONOUR: In the Beach matter?
MR GAMBOTTO: In the Beach matter also, yes. Your Honour, if I may at this point, if it may be convenient, in regards to the written submissions, should your Honour include in his orders, the fact that the Attorney-General is participating in the trial, should be served with a copy of the written submissions.
HIS HONOUR: Yes, well, what do you say about that, Mr Heydon?
MR HEYDON: I think it is probably, putting aside questions of money which do not bulk very large, a sensible course. Otherwise they may turn up saying they were not aware of what was going to be said.
HIS HONOUR: Yes, but often one does not know which Attorneys are going to come until the actual morning, of course, of the trial.
MR HEYDON: I propose purely as a modus vivendi between ourselves and Mr Gambotto, that Mr Korner would make informal inquiries in the week or so before 4 September.
HIS HONOUR: I think what I will do is to direct service on the Commonwealth Attorney. I think myself in the end result he will be the only one who appears. In the Samantha matter, I will amend order 2 so it will say "be filed and served on or before 4 September 1995 on the defendant and the Attorney-General for the Commonwealth". Then in 3, "be filed and served on or before 11 September on the plaintiff and the Attorney-General for the Commonwealth". So I will read again the orders in the Samantha matter:
1. Enter action No S7 of 1995 for trial in Sydney before me at 10.15 am on 18 September;
2. Any written submissions by the plaintiff, not exceeding 10 pages, be filed and served on or before 4 September 1995 on the defendant and the Attorney-General for the Commonwealth;
3. Any written submissions by the defendant, not exceeding 10 pages, be filed and served on or before 11 September 1995 on the plaintiff and the Attorney-General for the Commonwealth;
4. Stand over to the trial the objection by the defendant to the competency of the notice of appeal dated 3 March 1995;
5. Note that the solicitors for the defendant and the Deputy Registrar will consult as to such notification of the trial date to Attorneys-General as is appropriate;
6. Costs of today be costs in the action;
7. Dispense with compliance with Order 36 rule 22;
8. This action be tried concurrently with action No S12 of 1995.
Mr Gambotto says 78B notices have gone forward in your matter, Mr Webb; yes, on 27 February. I will just make an appropriate adjustment to the order.
In the Beach matter order 1 will be:
1. Enter action No S12 of 1995 for trial in Sydney before me at 10.15 am on 18 September;
2. Any written submissions by the plaintiff, not exceeding 10 pages, be filed and served on or before 4 September 1995 on the defendant and the Attorney-General for the Commonwealth;
3. Any written submissions by the defendant, not exceeding 10 pages, be filed and served on or before 11 September 1995 on the plaintiff and the Attorney-General for the Commonwealth;
4. Note that the solicitors for the defendant and the Deputy Registrar will consult as to such notification of the trial date to Attorneys-General as is appropriate;
5. Costs of today be costs in the action;
6. Dispense with compliance with Order 36 rule 22;
7. This action be tried concurrently with action No S7 of 1995.
Is there anything else, gentlemen? I will now adjourn.
AT 11.38 AM THE MATTER WAS ADJOURNED
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