Paramount Films of Australia Inc and ORS v Galaxy Communications Pty Limited and ORS S52/1998 [1998] HCATrans 168 (19 May 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S52 of 1998

B e t w e e n -

PARAMOUNT FILMS OF AUSTRALIA, INC.

First Applicant

SPE AUSTRALIAN VENTURES PTY LIMITED

Second Applicant

UNIVERSAL STUDIOS PAY TELEVISION AUSTRALIA, INC.

Third Applicant

TCI MOVIES AUSTRALIA PTY LIMITED

Fourth Applicant

TWENTIETH CENTURY FOX PAY TELEVISION (AUSTRALIA) PTY LIMITED

Fifth Applicant

PARAMOUNT GENERAL ENTERTAINMENT AUSTRALIA, INC.

Sixth Applicant

SPE GENERAL ENTERTAINMENT PTY LIMITED

Seventh Applicant

UNIVERSAL STUDIOS TV1 AUSTRALIA, INC.

Eighth Applicant

and

GALAXY COMMUNICATION PTY LIMITED

First Respondent

AUSTRALIS MOVIES PTY LIMITED

Second Respondent

AUSTRALIS TV1 PTY LIMITED

Third Respondent

Application for special leave to appeal

McHUGH J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 19 MAY 1998, AT 10.38 AM

Copyright in the High Court of Australia

MR P.M. BISCOE, QC: If the Court pleases, I appear with my learned friend, MR F. KUNC, for the applicants. (instructed by Corrs Chambers Westgarth)

MR A.J.L. BANNON, SC: And I appear for the respondents. (instructed by Harper Watson)

McHUGH J: What is the situation in this?

MR BISCOE: Your Honour, my application is for an adjournment. We have prepared a short affidavit which shows that yesterday afternoon winding-up orders were made against all the respondents in the Supreme Court of New South Wales. Might I have leave to- - -

KIRBY J: Is that affidavit before us?

MR BISCOE: I have it here, your Honour.

KIRBY J: I see.

MR BISCOE: May I have leave to file it? May I hand up two spare copies for your Honours.

McHUGH J: Yes, thank you, Mr Biscoe. Yes, Mr Bannon.

MR BANNON: Your Honour, we are obviously no intractably opposed to any adjournment, per se. The proceedings were expedited on the basis- - -

KIRBY J: Are we not bound to adjourn it?

MR BANNON: There may be some debate as to the precise meaning of section- - -

KIRBY J: Or do you have a constitutional point, do you?

MR BANNON: No, it is a constructural point, I think, because the stay is against "a proceeding in a court exercising the jurisdiction of", if you track it through all the meanings "the State of New South Wales". Now there may be a nice question as to whether or not the grant of special leave is exercising the jurisdiction of the State of New South Wales. It is not the jurisdiction of the courts of the State of New South Wales in the sense that all citizens are governed in New South Wales by the laws of the Commonwealth and the State. It may be, certainly at the grant of final orders, if special leave was granted, the orders of the High Court, if they were to affirm or substitute its own decision, we would think, a- - -

KIRBY J: If you look at the purpose of the bar, it is to "allow regrouping, reconsideration and not to be harassed or troubled or affected by steps taken in litigation", and there is no doubt that a grant of special leave is a big step in litigation.

MR BANNON: Quite.

KIRBY J: If you look at the purpose, the purpose seems to support the notion that you stop.

MR BANNON: Yes. Be that as it may, there may be a nice question of construction in relation to the special leave application, but leaving all that aside, the expedition was on the basis the receiver was entitled to have some certainty about the matter. We now have receiver and the liquidator also seeking that certainty. We really ask rhetorically, "Where would this adjournment take us if it is an adjournment to bring us back here another day?" The commercial purpose of the proceedings is to provide the applicants with the certainty as to the solvency or otherwise of the respondents.

That is now provided independently of the proceedings. The consideration of the correctness or otherwise of the Court of Appeal decision at the time would seem to be an erudite exercise serving no useful purpose. If leave is to be sought elsewhere, a consideration on leave would be whether there is a prima facie case, whether or not the High Court is likely to give special leave. I just say those things in the sense that there may be some utility in the Court, if it were so minded, expressing some view which may assist the sooner determination- - -

KIRBY J: You want us to pile hypothesis upon hypothesis? Why should we do that?

MR BANNON: To prevent hypothesis being piled against us.

KIRBY J: There are already enough hypotheses in this application not to want to pile another one on.

McHUGH J: Yes. When do you wish to adjourn this matter, Mr Biscoe?

MR BISCOE: Your Honour, in the first instance, we only require a matter of days in order to consider the position, so it is then a question of what would be the first convenient time arrangements could be made with the Court for it to come back before the Court.

KIRBY J: I think when the matter was before me for expedition there was some discussion of another list to which it could have been committed at that time. I do not remember what that list was.

MR BISCOE: Yes, the evidence is not before your Honour, but I can mention that if your Honour is interested.

KIRBY J: Yes.

MR BISCOE: There was a default in a payment.

KIRBY J: No, I did not want to go into that, I am going into the question of an alternative date to today was mentioned before this Court.

MR BISCOE: Yes, I am told by my learned junior that there was mention of the Canberra list on Thursday.

KIRBY J: That is the Darwin video link, but would Thursday be enough time to have- - -

MR BISCOE: Probably not, your Honour.

KIRBY J: No.

MR BISCOE: We have overseas clients, your Honour, and some of them we have not been able to communicate with overnight.

KIRBY J: Yes, but why would we not, holding the order of expedition, simply stand - because, in one sense, if this Court is to proceed, it is better in the interests of both parties and all those involved who are interested, that the matter be disposed of as quickly as possible.

MR BISCOE: Yes, your Honour.

KIRBY J: That we simply hold the order of expedition and leave it to the Registrar to fix it, after hearing from the parties as to the date that will be convenient, if the matter is to proceed in this Court.

MR BISCOE: We would respectfully accede to that, your Honour.

McHUGH J: Mr Biscoe, my preference would be to stand the matter over to the next special leave day in Sydney. The parties have liberty to apply to bring it on earlier if they wish.

MR BISCOE: If your Honour pleases.

McHUGH J: Yes.

KIRBY J: That will prevent languor settling into the case.

McHUGH J: Yes, and the matter might be best disposed of by you withdrawing your application, Mr Biscoe, on the ground of the futility of the proceedings. This matter is adjourned until the next special leave sitting of the Court in Sydney. However, either party has liberty to apply to the Registrar to bring the matter on earlier if circumstances permit.

AT 10.45 AM THE MATTER WAS ADJOURNED