Boland v Yates Property Corporation Pty Ltd & ANOR S24/1999 [1999] HCATrans 154 (20 May 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S24 of 1999

B e t w e e n -

JOHN BOLAND (as representative partner of Abbott Tout Russell Kennedy, Solicitors)

Appellant

and

YATES PROPERTY CORPORATION PTY LIMITED and IAN FRANCIS YATES

Respondents

Office of the Registry

Sydney No S28 of 1999

B e t w e e n -

JOHN WEBSTER

Applicant

and

YATES PROPERTY CORPORATION PTY LIMITED and IAN FRANCIS YATES

Respondents

Directions Hearing

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 20 MAY 1999, AT 11.42 AM

Copyright in the High Court of Australia

___________________

MR A.S. BELL: If your Honour pleases, I appear for the appellant, Boland, in matter S24 of 1999. (instructed by Minter Ellison)

MR S.T. WHITE: May it please your Honour, I appear for the appellant, Webster. (instructed by Moray & Agnew)

MR D.M. QUICK, QC: May it please the Court, I appear for Yates Property Corporation. (instructed by Bruce & Stewart)

HIS HONOUR: This matter has been listed before me for the purpose of directions. There are a number of questions which arise. One of them is the time that will be necessary for the hearing. A second is the directions that are appropriate to the management of the case in terms of the appeal papers. The third is a timetable for written submissions, on the basis that the matter will be listed in the August sittings of the Court. The fourth is the allocation of time for oral argument when the matter is returned before the Court. So they are the three matters to which we should turn our attention.

Can I tell counsel that recently we have two large cases. One is a case of Perre v Apand, and another a case of Crimmins v Stevedoring Authority. In each of them we had a multitude of appeal papers and when I looked this morning, I saw yellow flags in only about four of the volumes. That is four between the two of them, which means that a huge number of appeal papers were reproduced, presented and not referred to. The Court is going to have to think of some sanction that is appropriate in these cases to save litigants, because it is litigants who pay for the appeal papers. So can we turn our attention, first of all, to the issue of the length of the oral submissions before the Court, because that will determine which days in the August sittings can be assigned.

Is there something you would like to say about that? Who will take the lead in this matter?

MR BELL: Your Honour, I have had the opportunity to discuss that with Mr Macfarlan who is leading me in that matter and it is our estimate that the matter would take three to four days of hearing.

HIS HONOUR: I think that I was told - or at least I estimated, after the special leave hearing, that it would take two days. What do you say, Mr Quick?

MR QUICK: Your Honour, I am of the same view as that expressed on behalf of Mr Macfarlan. There are a huge number of issues raised in the schedules to the notice of appeal.

HIS HONOUR: You say a huge number. Really, conceptually there are four issues, are there not? One is the legal duty of solicitors. A second is the valuation principle, special value and the head start issue. The third is the extent of an advocate's immunity. The fourth is the fact-finding process in the Full Court of the Federal Court. So they are the four issues. Conceptually, I suppose the one that may take a bit of time is the last one, when we are being asked to look at the facts that are before the primary judge and then look at the facts as they were dealt with in the Full Court of the Federal Court, but I just do not want to come to the Court and have 13 volumes of appeal books and only have two or three of them referred to. The client pays for this. The litigant pays for it. It is not the lawyers that pay for it.

MR QUICK: Your Honour, in the identification of those issues, with which I respectfully agree, your Honour has referred to the extent of the advocate's immunity. Does your Honour take into account that there is a notice of alternate contention on file which raises the correctness of the decision in Gianarelli which is a matter which I now understand we have to have leave to do following a recent decision of the Court?

HIS HONOUR: Yes.

MR QUICK: But that issue could take some time, although obviously a lot of it could be dealt with in writing. But I share Mr Macfarlan's estimate, your Honour.

MR BELL: Could I just say in amplification, your Honour, that the estimate that we have reached was on the assumption that the appeal involving Boland would be heard at the same time as the appeal involving Webster.

HIS HONOUR: Oh yes, that would be the intention, I would think.

MR BELL: And the way in which we approached the matter was this way, your Honour. We assumed that we would be going first and it seemed to us that we would require a day to a day plus for our submissions. Mr Webster would follow and would require perhaps a day minus, in view of the fact that we would have already covered some of the common issues. Mr Yates would require, perhaps, a day minus to reply, and then the balance of the time such as the Court is able to give us would be devoted to a reply.

HIS HONOUR: Does that mean that it is really a three day plus case?

MR BELL: That is probably accurate, from our point of view at least.

HIS HONOUR: See, every day we allocate is taking somebody out of their opportunity of having the time of the Court. That is the bottom line. Perhaps I can inform the Chief Justice that the best estimate which both sides give is that it is a three days plus, and it may be that we can list another short matter on the fourth day on the basis that if it does run into the fourth day, we could still get another case done. I think it would be desirable that the parties should bend their efforts to ensure that that can be done. Otherwise they get the time of the Court and somebody else does not.

Now, what do you say about the appeal books? I gather that there were a very large number - I have a note from the Registrar that there were 31 arch lever folders in the Federal Court appeal, so that a question arises, is there some economical way that we can save having all of those documents reproduced? When I tell you I have now been on the Court four years, we get all of these documents and no one refers to them. It is really a scandal, a scandal of the legal profession. You need to have, it would seem to me, a volume which is for convenience of the Judges. It is a core record. In other words, with the central documents that everybody is going to be referring to. Then we need some economical way that, in case something else comes up in the course of the case, the Court can have that available to it. Have you any suggestions on how that can be done?

MR BELL: Your Honour, those instructing me have yesterday sent a draft joint appeal index to the solicitors for the respondent. That has been prepared in conjunction, and in consultation, with the solicitors for Mr Webster. If it is acceptable to the respondent, it would involve a considerable reduction from the material that was before the Full Court. We understand that there is an appointment been provisionally set for the settlement of an index - - -

HIS HONOUR: How many volumes is that going to entail? Not 31, I hope.

MR BELL: From 31 lever arch volumes before the Full Court it would be something approaching ten.

HIS HONOUR: Have you had an opportunity, or your solicitor, to consider the amended index?

MR QUICK: No, your Honour, it was only received late yesterday afternoon. He has already started on the task, but we are in no position to contribute to provide information to the Court on that.

HIS HONOUR: I do realise that in the fourth issue the Court is going to have to look at the whole spectrum of the facts of the case but I hope I am not letting out any secrets when I say that the Justices of the High Court of Australia do not have time to sit down and read from cover to cover ten appeal books. It just will not happen. That is why we have to rely on the lawyers. That being so, I really question even ten appeal books, but it should be set as the absolute maximum, I would have thought. Thirteen, I think there were, in Crimmins, and after a recount, four I think were referred to. Certainly no more than four. Most of them only once of twice. So please give your attention to ways of reducing the number of appeal books.

When would you know, Mr Quick, as to whether the ten that are proposed are acceptable to your side?

MR QUICK: Your Honour, we would need about a week to go through it.

HIS HONOUR: This matter is going to be called over before the Deputy Registrar on 10 June 1999, I understand.

MR QUICK: We should have it finished by then, your Honour.

HIS HONOUR: So can we leave it till then but, if necessary, I will come again and sit in order to resolve any differences and they would be resolved in favour of economy. It is just based on experience in the Court of Appeal and here that you really do not need all the papers that are produced. In the High Court, I have never known it that if the parties want to hand something up that appears to them, in the way the case is unfolding, to be relevant, it is never rejected. It is always accepted and would be in this case. So that you should work on that premise, that you are not going to be caught by surprise. If anything does appear to be relevant, it will be received by the Court on the run during the case.

So work on that footing and please try to bring the number of appeal books down. And would you please both - I do not know, it may be that your solicitor having followed the old convention has not done what I suggested, but I can tell you from the point of view of convenience it is very helpful to have one volume in which the core documents are. Indeed, the Court is considering some rule changes which will make that a matter of general practice, that we will have the core volume which, as a matter of convenience, the Justices can take with them if they are working outside of Canberra or outside of Sydney, even; in Adelaide or Perth, as we will shortly. So would you give some thought, maybe in discussion with the solicitors for the respondents, to reorganise, if necessary, the index and the papers so that there is a core volume with the judgment at first instance, the judgment under appeal, the essential pleading and the core documentation which is crucial to the case.

MR BELL: We shall, your Honour.

HIS HONOUR: I would ask you too, Mr Quick, if you could get your solicitor to do that.

MR QUICK: Yes, your Honour.

HIS HONOUR: The third item is the timetable for written submissions, given that you have what is a fair measure of expedition getting the case on in the August sittings. Have you been able to give thought as to what would be an appropriate timetable?

MR BELL: Your Honour, for our part, we would propose that at least so far as S24 of 1999 is concerned, that we would file written submissions by 4 pm on Friday, 9 July. The respondent would file submissions in response by 4 pm on Friday, 23 July. That is on the assumption that the matter would commence on 2 August.

HIS HONOUR: Yes. I am not sure exactly what date in August, but it would possibly be safe for us to work on the basis that it is the first starter in that list. So that working backwards, that would seem to be an appropriate timetable. Do you have any comments on - could you maintain that timetable, Mr Quick?

MR QUICK: Your Honour, I am instructed to request the Court fix the timetable that the applicants file their submissions four weeks ahead of the start date and that the respondent file its submissions one week ahead of the start date. We have to respond to two sets of submissions.

HIS HONOUR: So you are looking for submissions by the 2 July.

MR QUICK: Yes, 2 July, your Honour.

HIS HONOUR: Could that be maintained? After all, you know what the issues are. You have your submissions from the Full Court, so that 2 July, which is still more than a month away, that ought to be possible, ought it not?

MR BELL: Your Honour, I did indicate to Mr Quick this morning the practical problem that we have with his proposal and that is this, that from the end of next week until Monday, 5 July, Mr Macfarlan is away overseas. So that the only opportunity I have to consult with him and prepare submissions with him would be during the week starting 5 July.

MR WHITE: Your Honour, can I, on behalf of Mr Webster, also indicate a problem. If the index is not to be settled until 10 June, and one assumes there will be a period of time before the appeal books are printed, which could be late June, it does not give counsel a great deal of time to come to grips with the material in the appeal books, no doubt which will be cross-referenced with the submissions. The other difficulty we have, your Honour, is that to allow the respondent to serve its submissions so close to the appeal runs the risk of receiving those submissions very close to the heel of the hunt.

HIS HONOUR: Perhaps I might just interrupt the proceedings to ask Senior Registrar Rogers whether or not it is likely that the matter may be listed in the second week of August, in which event we might be - I get a negative response to that, so it is likely that it will be in the first week of August.

SENIOR REGISTRAR: Sorry, your Honour, the second week the Court is sitting in Adelaide.

HIS HONOUR: Of course, yes, that is right. So it will be the first week of August then. The alternative is simply to vacate August and to stand it over until some time next year to be heard.

MR BELL: Your Honour, we submit that a few extra days from our point of view would not cause any real practical prejudice to the respondent. Just as we are aware of the issues, so are they, your Honour. All we ask is that, from our point of view at least, that I have the opportunity to have Mr Macfarlan's input into submissions that we would want to put before your Honours.

MR QUICK: Your Honour, we have the difficulty that our submissions have to respond to someone else's submissions. It is not as if we are making the running of the case and we could do a lot of preparation beforehand. It would be a frenetic activity once the appellants' submissions have been received. We are a small legal team, largely due to problems with finance, and that is well known, there were security for costs applications made that Yates Property Corporation could not comply with. The fact is that we have to respond to two sets of submissions, in a large matter, involving substantial cross-checking of evidence, as it turns out now.

HIS HONOUR: The practical point about the preparation of the appeal books is a good point because until you get that, you cannot really do the submissions with the cross-reference to the appeal papers that we are going to be using. So that you have to have them, and that will take a certain amount of time. That will be delayed unless there is agreement between the solicitors concerning the contents of the appeal papers. So that it cannot be put too early or else you will not have the appeal papers.

MR QUICK: We would prefer to vacate August, rather than have inadequate time to prepare our responses to those submissions.

HIS HONOUR: Yes. I wonder if there is not a compromise here, that you will prepare your written submissions, perhaps take some time this week to have a conference with Mr Macfarlan and, in so far as there are common issues with Mr White, then put the submissions in on the understanding that it may be necessary for some refinement of detail at a later stage. That does happen. We sometimes get revised written submissions close to the hearing when counsel have been able to give it further attention.

MR BELL: Could I propose another compromise to your Honour for your Honour's consideration. As I understand it, my learned friend Mr Quick requires our submissions by 2 July and we have proposed 9 July. If your Honour were prepared to perhaps order our submissions by, say, 6 or 7 July, that would at least give us the opportunity to consult jointly with Mr Macfarlan.

HIS HONOUR: What day of the week is 6 July?

MR BELL: That is a Tuesday.

HIS HONOUR: That gives you virtually a full working week, Mr Quick, 6 July instead of the 9th, and you have - - -

MR QUICK: Your Honour, there is nothing further that I can say that I have not already said.

HIS HONOUR: Yes. I am conscious of what you say, but it is not as if this is the first level of appeal. You do really know, essentially, what the running will be because the issues have already been ventilated, both at the lower level and the Full Court. But I think if you got the written submissions by 6 July, that would protect you and ensure that you have adequate time and, if you do not, you can make an application.

MR QUICK: If your Honour pleases.

HIS HONOUR: Very well. Appellants' submissions to be filed and served on or before 6 July 1999. Respondent's submissions, 23 July was proposed. Does that create a difficulty?

MR BELL: Not from our point of view, your Honour.

MR WHITE: No, your Honour.

HIS HONOUR: Very well, respondent's submissions, 23 July.

The last question is allocation of time for oral argument, given the fact that we have calculated it will take 3 plus days. Will there be any interveners in this case? Is it possible that there would be application from any law societies or anybody else, bar associations, others to intervene?

MR WHITE: Not as far as we are aware, your Honour.

MR BELL: Your Honour, I should just perhaps say this, in answer to your Honour's question. From time to time it has been suggested that Mr Simos may have an interest which would warrant him applying for leave to appear in this appeal.

HIS HONOUR: Yes, I understand there has been a development in the pleading that may occasion some interest on his part but my own view is that we should deal with that if and when it arises, not complicate our problems, which are hard enough as they are, without necessity.

You told me earlier, I think, that you thought Mr Macfarlan would be about one day, is that correct?

MR BELL: A day plus, is what we thought, your Honour, from our point of view.

HIS HONOUR: What about your team, Mr White?

MR WHITE: We would expect a day, your Honour.

HIS HONOUR: The respondent?

MR QUICK: Your Honour, because we are responding it is very difficult to make an estimate.

HIS HONOUR: I realise that.

MR QUICK: But I would have thought that we would need almost as much time as the other two; not as much, obviously because - - -

HIS HONOUR: They would be laying out the facts and so on.

MR QUICK: Exactly. I would have thought that something of the order of - - -

HIS HONOUR: You are a bit of a day plus, then, really.

MR QUICK: Yes, I think so, your Honour.

HIS HONOUR: So we have one day for Mr Boland, one day for Mr Webster, with perhaps a little bit of give and take between them on that, then one day plus for Yates Properties, with the understanding that the whole case may run into the fourth day. Is that a fair allocation?

MR QUICK: Your Honour, I had actually looked at it in percentage terms, not knowing how many days we were going to be allocated. But I thought something of the order of 55 per cent for the two appellants, 40 per cent for the respondent and a little for reply.

HIS HONOUR: Yes, but please bear in mind that because of the number of cases. Since Justice Callanan joined the Court the number of special leave applications has increased and the number of cases listed has increased and we have to be fair to other parties. I mean, there is a backlog of cases that are waiting hearing so there will be a need to ensure that we perhaps list another case on the fourth day. There are, of course, some people say that it is since my appointment to the Court, but whatever the reason, there is a backlog and we have to get - everybody must have their fair opportunity.

But I think we should work on the basis that the first day will be the day for Mr Boland, second day give or take will be for Mr Webster, the third day plus will be for Yates Properties and there will be time then for reply. It may be necessary for us to consign the substantial part of reply to writing because, by that time, we will have the issues before us and lengthy oral submissions will not be particularly helpful, I would think.

Is there any further matter upon which you seek directions?

MR WHITE: Yes, your Honour. Your Honour indicated before that the appeal index was to be settled on 10 June which I estimate is about three weeks hence. It is my application that that be vacated and that the appeal index be set down for settling on 28 May 1999, which is about one week hence, which we submit would give the respondents more than enough time to determine whether they agree with the draft index that has been circulated. That would mean - - -

HIS HONOUR: Would that give enough time to consider what I have said about the need for a core volume?

MR WHITE: I believe so, your Honour, yes, and Mr Bell, I think, agrees with that.

HIS HONOUR: Is 28 May convenient to your side, Mr Quick?

MR QUICK: We can comply with that, your Honour.

HIS HONOUR: Is 28 May suitable to the Registry? Very well. That will be ordered. Is there any other matter that you think should be ordered?

MR WHITE: Yes, there is, your Honour. Your Honour, we desire to amend the notice of appeal which is a document that has been circulated for some time between the parties. We sought to file it in the Registry but, as I understand it, were told that it was more appropriate that on a directions hearing it be filed in Court.

HIS HONOUR: Is there any objection to the filing of the amended notice of appeal?

MR QUICK: No, your Honour.

HIS HONOUR: Yes, very well.

MR WHITE: Might I, with your leave, your Honour, file in Court an amended notice of appeal.

HIS HONOUR: Thank you very much. Is there any other matter?

MR BELL: Your Honour, could I likewise apply for leave to amend to more or less follow form with the amendments in the Webster appeal?

HIS HONOUR: Yes. Is there any objection to this course, Mr Quick?

MR QUICK: No, your Honour.

HIS HONOUR: Thank you. Hand it up.

MR QUICK: Your Honour, the making of those amendments may necessitate amendments to the notice of alternative contention. I would ask for leave to file an amended notice of alternate contention.

HIS HONOUR: Yes, is there any objection to that course? That would appear to be appropriate.

MR BELL: No.

MR WHITE: No objection.

HIS HONOUR: Is there any other matter which the appellants wish to raise?

MR BELL: No, your Honour.

HIS HONOUR: Is there any other matter the respondent wishes to raise?

MR QUICK: There is, your Honour. That is the matter of the procedure to be adopted in relation to the challenge to the correctness of Gianarelli's Case. There is nothing that I can see in the Rules - - -

HIS HONOUR: This is Court-made rules. It is a case of Evda, I think, is it not? Justice Deane dissented and I take the view Justice Deane took.

MR QUICK: That leave was not strictly necessary.

HIS HONOUR: Yes, but the Court's practice is to require leave, so you should assume that leave will be required. The practice is normally to argue the issue of leave in arguing the substantive point. It has occasionally occurred, in my experience, that the Court hears the two separately, but I could not imagine it would in this case. It would hear the substance of the argument and the substance would reflect upon whether leave should be given and both parties should be ready to deal with both the leave and substance questions at the one time.

MR QUICK: If your Honour pleases. I was just concerned that in that case there was criticism made of the applicant's counsel for making the application at a very late stage. I want to make it known now that we are aware that leave is required and we will be seeking leave in the oral argument to submit it to the Court.

HIS HONOUR: I cannot give that leave. It will have to be given by the Full Court, but normally the practice in my experience is to argue substance and leave at the one time.

MR QUICK: If your Honour pleases.

HIS HONOUR: Your written submissions will make it plain that you are seeking that leave.

MR QUICK: They will, your Honour.

HIS HONOUR: Very well. Perhaps you might just listen to the matters which I will now list as directions and tell me if I have captured the points that have been discussed.

The directions are as follows:

1. Time of hearing.

It is estimated that the hearing of both appeals will require three days plus but the parties will prepare on the footing that the Court may wish, on the fourth day, to list another short matter for hearing and that the time on the fourth day required by these appeals will be minimal.

2. Appeal books.

The parties are in discussion concerning the index to appeal books. That discussion will be extended to take into account the request of the Court that a volume of the core record will be prepared which contains the essential documents: pleadings, judgment of the primary judge, judgment of the Full Court of the Federal Court, notices of appeal and of contention, the most significant evidentiary material and any other essential matters which the parties agree should be in the core record. If the core record requires two volumes, then two volumes will be prepared for this purpose. The parties are on notice that the Court requests that the production of appeal books which are not referred to be avoided.

3. The timetable for written submissions will be:

Appellants' submissions filed and served on or before 6 July 1999.

Respondent's submissions filed and served on or before 23 July 1999.

4. Listing.

The appeals will be listed in the first week of the August sittings in Canberra.

5. Allocation of time for oral argument.

The parties are expected to discuss the time that will be required and to co-operate with each other. The general allocations will be: the first day will be devoted to the presentation of Mr Boland's case; the second day to the presentation of Mr Webster's case; the third day plus to the presentation of the case for the respondent and replies, although it should be noted that the Court may order that the replies be consigned to writing.

6. Call over before the Deputy Registrar.

The hearing date previously notified of 10 June 1999 is vacated and in lieu thereof the matter will be called over before the Deputy Registrar on 28 May 1999 at a time to be notified to the parties. This is done by consent.

7. Amended pleadings.

The appellant, Mr Boland, has leave to file in Court the amended notice of appeal in the form of the document handed to me which will be placed with the papers.

The appellant, Mr Webster, has leave to file in Court the amended notice of appeal in the form of the document which was handed to me and which will be placed with the papers. I initial both documents. Those documents are filed out of time but by consent of the respondent.

The respondent will have leave to file in the Registry of the Court an amended notice of contention to respond to each of the notices of appeal, such notice of contention to be filed and served by?

MR QUICK: Your Honour, by the end of next week, would that be convenient?

HIS HONOUR: That will be the 29th, is that right?

MR QUICK: The 28th, I think.

HIS HONOUR:

Such notice of contention to be filed and served by 28 May 1999.

8. Costs.

I certify for the appearance of counsel in chambers and I order that the costs of this directions hearing be costs in the respective appeals.

Is there any other orders that the appellants ask me to make?

MR BELL: No, thank you, your Honour.

MR WHITE: No, your Honour.

HIS HONOUR: Any other orders for the respondent?

MR QUICK: No, your Honour.

HIS HONOUR: They are the orders of the Court. I will now adjourn.

AT 12.16 PM THE MATTER WAS ADJOURNED