Sydney Water Corporation Ltd v Wyatt S18/1995 [1995] HCATrans 357 (13 October 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S18 of 1995

B e t w e e n -

THE SYDNEY WATER CORPORATION LIMITED (formerly WATER BOARD)

Applicant

and

RONALD BERNARD WYATT

Respondent

Application for special leave to appeal

BRENNAN CJ

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 OCTOBER 1995, AT 11.45 AM

Copyright in the High Court of Australia

MR B.M. TOOMEY, QC: May it please your Honours, I appear with my learned friend, MR D.J. BROGAN, for the applicant. (instructed by Astridge & Murray)

MR B.S. ROBISON: May it please the Court, I appear with MR P. MANSFIELD for the respondent. (instructed by Maurice May & Co)

MR TOOMEY: Your Honours, this has nothing to do with what has happened in the last two applications but I ask your Honours to dismiss the application with costs.

McHUGH J: I am not surprised.

MR TOOMEY: I did not think your Honour would be.

BRENNAN CJ: Special leave is refused with costs.

MR TOOMEY: May it please your Honour.

MR ROBISON: There is a little standard tale, your Honour, in that I have asked for an indemnity order for costs in my submissions on the basis that this application is so without merit it could almost be called odorous. There must be a case which is just so unjustified to come before this Court where you have a little man in the street and a large public instrumentality in a case which ultimately might be worth about $50,000 which there has got to be a shortfall of solicitor and client costs for the day. In all the circumstances, it warrants an indemnity order for costs.

BRENNAN CJ: With two counsel?

MR ROBISON: No, only one, your Honour. The other one has volunteered to come along and carry my books.

BRENNAN CJ: We will hear what Mr Toomey has to say.

MR TOOMEY: Your Honour, it is our respectful submission, if I had argued the case and your Honours had not called on Mr Robison, as I think is plain your Honours would not have, your Honours would simply have made an order for costs. There is no reason why the situation should be any different because we accept that that was going to be - - -

BRENNAN CJ: It is not any different because of the way in which you have dealt with it, Mr Toomey.

MR TOOMEY: No, your Honour.

BRENNAN CJ: That is not the point.

MR TOOMEY: No, quite, your Honour. Your Honour, there was something to be said, in our respectful submission, because Piening v Wanless was a case of a substantive hearing. This was a case of an application in an interlocutory matter which would affect the result in the ultimate hearing, the ultimate hearing not having come on. So, although I accept - - -

GAUDRON J: Has the ultimate hearing been delayed because of this?

MR TOOMEY: The ultimate hearing - the application was put on before the ultimate hearing would have come on, your Honour. It has been delayed by reason of the pendency of this application but it was not delayed so that the application could be made.

GAUDRON J: No, no, I understand that. It may not be relevant to costs as such but it is a most unsatisfactory situation if the hearing has been delayed because of the application that is now withdrawn.

MR TOOMEY: We will consent to an application for expedition, your Honour.

GAUDRON J: It is not our court.

MR TOOMEY: I did not think Mr Robison would be making it here, your Honour.

BRENNAN CJ: The real question seems to me, Mr Toomey, is could - perhaps this is not quite the way to put it but let me ask the question nonetheless. Could a legal adviser, addressing the problem which this application seeks to raise, reasonably contemplate the prospect of it being granted?

MR TOOMEY: Your Honour, I would, with great respect, say that that is too high a standard.

BRENNAN CJ: What, reasonable care?

MR TOOMEY: No, but reasonable prospects of it being granted. I mean, your Honour must appreciate, with great respect, that the ratio between granted and not granted applications is, as I understand it, about 10:1 anyway.

McHUGH J: No, I do not think so.

MR TOOMEY: Is it not, your Honour?

McHUGH J: No, it is not. It is around 16 per cent, I think. It used to be between 24 and 28 but more and more hopeless applications are being brought.

MR TOOMEY: That is one view of it, your Honour.

McHUGH J: The time may have arisen when the Court may have to consider whether or not we should make orders against the solicitors for advising the bringing of these actions which take up this Court's time and which involve expense from the point of view of the applicant which is close if not over the line as to being unreasonably incurred.

MR TOOMEY: Your Honours, I think I have put all I can put but I would urge upon your Honours that there was something to be said.

BRENNAN CJ: Could anything have been said in the light of what has been said in Piening v Wanless?

MR TOOMEY: Piening v Wanless was a case where, on the substantive hearing, the point was not taken, your Honour.

BRENNAN CJ: Is this not a fortiori?

MR TOOMEY: Can I just remind your Honour of the facts as to the position at the time of the hearing of the initial application? James Hardie v Wootton had been decided and Electricity Commission v Plumb had been decided in the Court of Appeal. James Hardie v Wootton in which the Court said you look to section 50F, not to section 60I as this Court authoritatively said in Dedousis. James Hardie v Wootton was the subject of an application for leave to this Court which was refused. At the time the matter came before the primary judge on the interlocutory application, the situation was that the Court of Appeal had pronounced upon it and the High Court had refused leave to appeal from that decision. In those circumstances, it was somewhat different from Piening v Wanless.

Special leave was refused in James Hardie v Wootton in April 1991 and this hearing came on in June 1991.

GAUDRON J: That does not seem to me to be the point that you have to address. The point you have to address is a discretionary decision from the Court of Appeal refusing you leave to appeal three years out of time. Is it three years?

MR TOOMEY: Yes, your Honour.

GAUDRON J: Yes. Well now, that is what you have to address, bearing in mind the principles relating to the circumstances in which this Court will interfere with a discretionary decision.

MR TOOMEY: Your Honour, I was addressing that argument because the learned Chief Justice asked me how, if at all, I could distinguish it from Piening v Wanless. That was what that was directed to. The fact that the matter was three years out of time and that it was a discretionary judgment are factors, of course, we had to overcome but it is plain that that discretionary judgment was based on the failure to take the point. If Piening v Wanless could have been distinguished, then there was an argument because otherwise a substantive trial was going to go on, never having been held before, fundamentally on the state of the law which had been declared to be wrong before the trial was held and that was the manner in which Piening v Wanless differed. May it please your Honours.

BRENNAN CJ: There will be an indemnity order for costs in this case, limited to one counsel.

MR ROBISON: If the Court pleases.

MR TOOMEY: May it please your Honours.

AT 11.53 AM THE MATTER WAS CONCLUDED