Emanuele and ANOR v Emanuele Investments Pty Ltd A42/1997 [1998] HCATrans 59 (12 March 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A42 of 1997

B e t w e e n -

ROCCO EMANUELE and GIUSEPPE EMANUELE

Applicants

and

EMANUELE INVESTMENTS PTY LTD (IN LIQUIDATION) AND OTHERS (AS SET OUT IN APPENDIX A)

First Respondent

PETER IVAN MACKS

Second Respondent

DOUGLAS MEAGHER QC

Third Respondent

AUSTRALIAN SECURITIES COMMISSION

Fourth Respondent

Application for special leave to appeal

BRENNAN CJ

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 12 MARCH 1998, AT 10.00 AM

Copyright in the High Court of Australia

________________________

MR G.B. HEVEY: May it please the Court, I appear for the applicant. (instructed by Georgiadis & Co)

MR R.J. WHITINGTON, QC: May it please the Court, I appear for the first and second respondents. (instructed by Fisher Jeffries)

MR T.A. GRAY, QC: May it please the Court, I appear with my learned friend, MS A.L. McCARTNEY, for the fourth respondent. (instructed by Mr N.D. Bampton, Solicitor, Australian Securities Commission)

MR HEVEY: May it please the Court, this application goes to one of the fundamentals of our system of justice and that is the appearance of justice itself. It applies to a particular area of law which is not what might be called normal inter partes litigation but that which has been set down by way of examination pursuant to Part 5.9 of the Corporations Law.

BRENNAN CJ: Mr Hevey, what is the remedy which you are seeking?

MR HEVEY: The remedy which we would seek from this Court, if leave was successful and if the appeal was successful, would be essentially that the examinations in relation to my two clients, at the very least, be revisited and the reason for that - - -

GUMMOW J: What does that mean?

MR HEVEY: The examinations effectively be struck out.

GUMMOW J: What would be the terms of the order?

MR HEVEY: The terms of the order would be that any orders relating to the applicants, Rocco and Giuseppe Emanuele, made by his Honour Judge Anderson be overturned and quashed and anything which flowed from those orders likewise effectively be removed from the record. The reason we ask for that is that the two -

BRENNAN CJ: When were those orders made, before or after the event to which you draw attention?

MR HEVEY: They were made before the event took place. They were made some months beforehand.

BRENNAN CJ: Yes, what is it about those orders which reveals any tarnishing by ostensible bias?

MR HEVEY: Your Honour, with respect, the way that the matter ought to be addressed, in our submission to you, is to look at the matter in its toto.

BRENNAN CJ: How can you say that when you are seeking specific orders of the kind that we have just identified? Do you not have to do something to indicate that the power that is created by the legislature and which was exercised by the making of those orders miscarried and if so, in what respect?

MR HEVEY: The only way we can point to the miscarriage is the fact that the clients, themselves, my clients, are left with the perception, at the end of the day, that the system through which they have been placed, which is quasi-judicial at the very least, has been in some way tainted by the actions of the judicial officer presiding over those functions. It is not to the point, in our submission, to say because you did not find out that this judge goes off and has drinks with counsel for the respondent until four or five months after the event, that anything that occurred before then cannot be touched by it.

The simple fact of the matter is that the clients walk away from the door of the court left with the perception that they have not been given the due process and protection which the legislature sets to put in place by putting a judicial officer presiding over these public examinations. So, in our submission, the temporal aspect of the event itself is an irrelevancy. It is the event - - -

GUMMOW J: An irrelevant - - -

MR HEVEY: It is the event that taints the actions. It is the event that taints the proceedings and, in this situation - - -

GUMMOW J: You are talking about tainting proceedings. I do not understand that.

MR HEVEY: Your Honour, in this situation, I go back to the very basics of Sussex Justices in 1924. These clients had been dragged - not dragged - these clients had been placed before a public examination, with the provisions of 596A and 596B, where you have got a position that they must answer questions. The only protection that is put in place for an examinee under 5.9 of the Corporations Law is the judicial officer presiding there over. That is the only protection that the examinees have and, in that situation, where they learn later that the person who is there to protect their interests, in effect, as well as the interests of the company, has been drinking with the counsel for the respondent, in our submission, they are entitled to feel that their proceedings have been tainted.

BRENNAN CJ: Why do you say "have been drinking with"? What evidence is there of that?

MR HEVEY: That was the 14 December incident, and that was clearly accepted. Indeed, Judge Anderson and Mr Meagher both conceded that, on 14 December, they did attend at a wine bar and drank together, alone, unannounced, for about an hour.

BRENNAN CJ: That was one incident.

MR HEVEY: Your Honour, with respect, that is enough.

BRENNAN CJ: After the events to which you refer. After the orders were made, after the examination was conducted.

MR HEVEY: Yes, but the examinations were still extant.

BRENNAN CJ: Not of your clients.

MR HEVEY: Both my clients - - -

BRENNAN CJ: Not of your clients, at that time.

MR HEVEY: With respect, your Honour, they were. The examinations were only adjourned and it was, at that stage, believed that the two examinees would be recalled for further examination.

GUMMOW J: That has not happened.

MR HEVEY: So, they were still - it has not happened as yet, but there is nothing to say that the examination may not yet continue. So, they are still extant. I would point to - - -

BRENNAN CJ: Well, then, the problem that may arise in the future does not arise now. We are dealing with the exercise of power which occurred before the event of 14 December, and one is yet to see the basis on which it is said that there was some ground for thinking that the exercise of that power miscarried.

MR HEVEY: Your Honour, the only submission I can put to you on that is that when one looks at the administration of justice and the perception of the public that are brought before it, especially under a Part 5.9 situation, that one ought to be entitled to expect that the aloofness that normally exists in an inter partes situation will continue to exist in this type of situation, especially in the inquisitorial or examination-type situation. I cannot put it any higher than that but in our submission to you the outline sets out quite clearly why this is a matter which requires some interpretation of Part 5.9 of the Corporations Law and, indeed, the relationship which must exist between counsel for any examiner and the judicial officer presiding thereover. Those are the submissions for the applicant.

BRENNAN CJ: Thank you, Mr Hevey.

MR HEVEY: May it please the Court.

BRENNAN CJ: We need not trouble you, Mr Whitington. The decision of the court below is correct, and for that reason special leave will be refused.

MR WHITINGTON: If the Court pleases, the first and second respondents ask for their costs.

BRENNAN CJ: What do you say to that, Mr Hevey?

MR HEVEY: I cannot successfully oppose that, your Honour.

BRENNAN CJ: It will be refused with costs. Yes, Mr Gray.

MR GRAY: May it please the Court, the fourth respondent seeks its costs.

BRENNAN CJ: Yes. You have the same response, Mr Hevey?

MR HEVEY: Yes, thank you, your Honour.

BRENNAN CJ: Special leave will be refused with costs.

AT 10.08 AM THE MATTER WAS CONCLUDED