State of Queensland & Anor v J.L. Holdings Pty Ltd B54/1996 [1996] HCATrans 463 (19 November 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B54 of 1996

B e t w e e n -

STATE OF QUEENSLAND

Applicant/First Respondent

SOUTH BANK CORPORATION

Applicant/Second Respondent

and

J.L. HOLDINGS PTY LTD

Respondent/Applicant

Application for expedition

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 19 NOVEMBER 1996, AT 10.00 AM

Copyright in the High Court of Australia

MR R.V. HANSON, QC: Your Honour, I appear for the applicants in this matter. (instructed by B.T. Dunphy, Crown Solicitor, Brisbane)

MR T.A. GRAY, QC: Your Honour, I appear with my learned friend, MR T. MATTHEWS, for the respondent to the application. (instructed by Minter Ellison Baker O'Loughlin)

HIS HONOUR: I have read the papers in this matter. I take the view that the question of expedition, although determined in accordance with certain principles, is ultimately a matter for the Court. The view I take of the matter is that there should be expedition in this case and it should be listed for hearing on 2 December by video link. I intend to make some directions about it, subject to hearing counsel of course, and in addition I think counsel should be ready to argue the appeal as part of the special leave application. The Court will be in Canberra. It is a matter entirely for counsel, but they may feel better about it if they are actually in the courtroom as opposed to arguing it on video link. There is no guarantee that the matter would be treated as an appeal but it does seem to me to be in a fairly short compass and, having regard to the urgency of the matter from both parties' point of view, the sooner this issue is clarified the better. Have you any comment to make on that, Mr Hanson.

MR HANSON: No, your Honour.

HIS HONOUR: Mr Gray.

MR GRAY: Your Honour, we agree that the expedition is a matter within the administration of the Court - for the Court - and from my client's point of view, there is an advantage in expedition as well.

HIS HONOUR: Yes, of course.

MR GRAY: We do have a particular matter to raise with the Court and that is the listing. I am presently briefed to appear in the list on that day in the Sydney list on another matter that is being treated with a degree of urgency concerning an appeal from the Full Federal Court, the Adsteam ASC matter, and it would cause my client, I think, some prejudice at this stage if I were not to be available to argue the special leave matter. So, we would like to ensure - - -

HIS HONOUR: It is not a matter that ordinarily the Court would take into account as being an expedited hearing but, having said that, Mr Gray, I think we would do everything we could to accommodate you. It seems to me there is no reason why, for example, you may not be listed first in the Sydney list and the matter be argued in Canberra in the afternoon.

MR GRAY: Yes, that would be convenient, your Honour. I am sure there will be an appropriate travel arrangement. So, if I was at 9.30 in Sydney and could be heard in the afternoon, that would overcome the problem.

HIS HONOUR: Yes, I think so.

MR GRAY: Were the matter to be heard on the video list, I would have been, I think, in Canberra, in any event, in person, rather than in Brisbane.

HIS HONOUR: Yes. I think the sooner the matter is resolved from the parties' point of view, I think the better. It may be, when the Court looks at it, special leave will be refused. It is possible that special leave would be granted and an appeal would be heard but I think we ought to be ready to deal with all contingencies just to try and dispose of the matter as quickly as possible.

MR GRAY: That is the other matter we wish to raise, your Honour. From my client's point of view, it has been pressing for a trial date for well in excess of 12 months and it does not want to lose its trial date. On the other hand, it does not want to be prejudiced and if the Court were inclined to the view that Justice Carr expressed, there would be obviously strict conditions in regard to getting the matter ready for trial.

HIS HONOUR: Yes. I think I will proceed on that basis. I will have to give some directions in relation to the matter to get it ready by 2 December. Ordinarily, the summaries of arguments for that sittings are due on the 21st for applicants and the 26th for respondents. I think I should extend that, subject to what counsel say, in the case of the applicants, until 25 November and in the case of the respondent, to 9 am on the Friday before the special leaves, 29 November. So that, in effect, gives you four days and will give you three days. Is that satisfactory to you?

MR GRAY: It is, your Honour. Did your Honour have in mind the outline of argument in regard to the appeal if special leave were granted?

HIS HONOUR: It is a matter for counsel. In my experience, the summaries on special leave can be more detailed than the outline of argument. It is a matter for you. There is no certainty the Court would deal with the matter. The Court might take the view it is just not a case for special leave. On the other hand, it might take the case it is a ground for special leave but perhaps it should be heard by seven Judges, having regard to the case management issues and its impact on the former rules in relation to amendments.

MR GRAY: Yes. If it is of any assistance to the Court in terms of timing, the matter was argued in Melbourne, both the application for leave and the appeal itself, which were to be heard at the same time and I think something approaching two hours of oral argument and that did not actually suffice because there is a long interlocutory history that needs to be understood. So, obviously, we will put that into written form to truncate the matter.

HIS HONOUR: Yes. I will also make this direction, that neither party is limited by the 10-page rule on the special leave

application. So, you put your written submissions as extensively as you want. That being so though, I think I might shorten your day by one day to allow the Judges time to read your submissions, Mr Gray. I do not think that should inconvenience you.

MR GRAY: No, we will be ready on that basis, your Honour.

HIS HONOUR: So, make it 9 am on 28 November. That is Thursday it has to be filed by. Mr Hanson, I think you should file a reply - it only gives you a day or so.

MR HANSON: We can deal with that, your Honour. If we get it by 9 am on the Thursday, we will cope with that.

HIS HONOUR: Yes. Do you think you can file a reply by 9 am on the Friday?

MR HANSON: Yes, we will do it.

HIS HONOUR: Thank you. I imagine you will have anticipated a lot of the arguments, having - - -

MR HANSON: I have heard them several times.

HIS HONOUR: Very well, in this matter I will make an order for expedition of the hearing of the special leave application. I direct that it be put into the list in Canberra - just before I make that order. Mr Hanson, would it inconvenience you to be in Canberra?

MR HANSON: Your Honour, I already have two applications in Brisbane but this matter will take priority and I think my client would prefer to be there. If Mr Gray is going to be there, we would want to be there.

HIS HONOUR: Yes. Counsel seem to have some idea or some belief that counsel who are present on special leave applications do better than counsel who are on video link. However, I can inform you that the Chief Executive Officer and Principal Registrar has done a statistical analysis and, in fact, counsel who are on video link win 1 per cent more of their cases than counsel who are - - -

MR HANSON: Your Honour, my personal preference is to be there. I have always found you just do not have the same rapport with the Bench and if we are going to be talking to seven of your Honours, then I think I would probably prefer to be there.

HIS HONOUR: You certainly will not be talking to seven on the Monday. You will start with three and you may finish with three, but if the Court grants special leave, then it may decide to hear the matter on the spot as then constituted or perhaps as reconstituted or it may just simply put the matter in the list and try and have it heard as quickly as possible. The second course would be undesirable if a grant was made because it would impact on the hearing of these proceedings and that is the last thing I would want to happen.

MR HANSON: If my client wants it I will be there, your Honour. It does not matter.

HIS HONOUR: I think it is just a question of the video link. There is a high probability, I would imagine, that the other hearings would terminate before lunchtime from past experience. We start at 9.30, it is highly likely. So, if both counsel are there, we will not need the video link for that afternoon. Now, there is one other factor that the Registrar reminds me of and that is the date for filing an application book.

MR HANSON: End of this week.

HIS HONOUR: End of this week?

MR HANSON: Yes.

HIS HONOUR: I will make the following orders. I direct that expedition be granted in this matter and that it be listed for hearing not before 2 pm on 2 December. I direct that the application book be filed by 4 pm on Friday, 22 November. I direct that the applicants' written summary of argument be filed by 25 November. I direct that the respondent's written argument be filed by 9 am on 28 November. I direct that there be no limit as to the length of written submissions. Having said that, that carries with it an implied term that the length of the submissions will be reasonable.

MR HANSON: Your Honour did not mention my reply, if any, by 9 am on 29 November.

HIS HONOUR: I direct that the applicants' reply by filed by 9 am on 29 November.

I think the proper order is that the costs of this application be the costs in the special leave application.

MR GRAY: Your Honour, could I just mention two matters. The first is in terms of arranging for the listing of the Adsteam/Deloitte matter at 9.30. Do I raise that with the Registry or could I take it that - - -

HIS HONOUR: I think the Registrar has heard what I have had to say and it will be - it is a matter, obviously, for the Judge who is presiding on that particular day, but I assume there will not be any problem at all about that.

MR GRAY: I am indebted to your Honour in that regard. Could I just raise one other matter, your Honour, about video links, if I might just seek the indulgence of your Honour. I might say, from counsel's perspective, the video works extremely well. From counsel's perspective the video is very successful and quite adequate and no prejudice arises at all. I can confirm that to your Honour from the Bar.

But from the client's perspective - this is a matter that I have written to the Registrar about on invitation - clients have repeatedly felt concern because, from the public's point of view, they perceive a disadvantage if their counsel was heard by video and the other counsel appears in person. There has been a repeated comment made to myself by clients, including men of commerce, and they do perceive a problem with it. That seems to be a matter of, perhaps, education. It is not an isolated comment that has been made. So for what it is worth, I seek the indulgence of your Honour to raise that because it has been mentioned a number of times.

HIS HONOUR: I do not think there is any answer to it except that those clients who may feel a problem about it should brief counsel to appear in person. It is put on by the Court's expense to save costs: save costs of travelling, accommodation and usually another refresher.

MR GRAY: It is an extraordinary advantage, your Honour, to practitioners from South Australia to have that. It is much appreciated. The other comment I make is purely to convey a perception from the clients, and invariably explain to them what your Honour has said, that statistically you do better by video.

HIS HONOUR: Yes. I think it is only 1 per cent. I will adjourn these proceedings.

AT 10.16 AM THE MATTER WAS ADJOURNED