Caboche v England (as liquidator of Southern Equities Corporation Limited (In Liquidation) A60/1997 [2000] HCATrans 122 (24 March 2000)

1IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A60 of 1997

B e t w e e n -

DELORES JEAN CABOCHE

Applicant

and

RICHARD ANTHONY FOUNTAYNE ENGLAND (as liquidator of SOUTHERN EQUITIES CORPORATION LIMITED (In Liquidation))

Respondent

Application to reopen the application for special leave to appeal

GLEESON CJ

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 24 MARCH 2000, AT 9.33 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR A.R. HARRIS, QC, for the applicant. (instructed by Cosoff Cudmore and Partners)

MR T.A. GRAY, QC: May it please the Court, I appear with my learned friend, MR M.C.J. HOFFMAN, for the respondent. (instructed by Fisher Jeffries)

GLEESON CJ: Yes, Mr Jackson.

MR JACKSON: Your Honours, is this an application to reopen one aspect of the application for special leave to appeal which had been refused by the Court on 12 August 1999. I do not know if your Honours have an outline on the notice of motion. Your Honours, if I may say so, in relation to that, we had not thought it necessary to have such a document relying on the original summary of argument and the affidavit in support of the application. But if we are wrong, your Honours, this is the argument we would rely on.

Your Honours, the aspect on which reopening is sought is referred to in grounds 4 and 5 of the application for special leave, which your Honours will see in the application book at page 232. That is the original application book. The Court refused special leave on those grounds because it was said the case was not a suitable vehicle to test the proposition. Your Honours will see that in the supplementary application book at page 5, paragraph 8, and the transcript of the proceedings is at page 12. Your Honours will see what your Honour the Chief Justice said in the penultimate paragraph on that page. Now, your Honours, what had occurred was, as your Honours will see, at page 10 was that Justice Gummow drew the attention of counsel in appearing for the applicant to these grounds, and then the argument on that commences in the penultimate paragraph on page 10.

Now when my learned friend was called on, your Honours will see on page 11, your Honour the Chief Justice asked:

what do you say about that last point we say concerning purpose?

And my learned friend said:

the points we make are quite short. If I could start this way: the examinations of Ms Caboche - - -

KIRBY J: Now, where are you on page 11?

MR JACKSON: I am sorry, your Honour, I am about point 4, Mr Gray.

KIRBY J: Yes, I see.

MR JACKSON:

The points we make are quite short. If I could start this way: the examinations of Ms Caboche are completed - they have occurred, and there has been no such issue of any abuse, any evidence of any abuse -

et cetera. Now, your Honours, his Honour Justice Gummow said:

Do you say this is not a convenient vehicle -

and my learned friend said:

We say it is not a convenient vehicle, if the Court pleases, because, in that sense, the point is academic to the case, it is moot to the case.

Your Honours will then see the reply on page 12 and then the result of the case.

Now, your Honours, the applicant, of course, as we say in paragraph 3 of our outline, is not aware of the Court's reasons for taking that view, but it may well be, we would submit, that a reason was that the Court had formed the impression that there would be no further examination of the applicant, and that there was nothing further usefully to be done by the Court entertaining the matter.

Your Honours, the respondent contends, as your Honours will have seen, that no such impression was intended to be conveyed to the Court, and that the statement to which I have referred was intended as a reference to the particular occasions of examination which had taken place in the proceedings which led to the matter in this Court. Your Honours, what we would seek to submit is what we have in paragraph 5 of our submission, namely, that the question is not really what was intended to be conveyed - and I make no adverse inference in relation to my learned friend at all - but, rather, what impression was, in fact, conveyed to the Court.

Your Honours will see that as soon as the proceedings came to an end and the transcript was available, my instructing solicitors wrote to the other side, and your Honours will see that at page 25 of the supplementary book, referring to these matters and asking whether the current appeal that was pending in the Supreme Court would now be going ahead. Your Honours will see that as soon as it became apparent that the respondent held a different view, and your Honours will see that in the correspondence at pages 28, 29, 30 and 31 - as soon as it became apparent that a different view was held by the respondent, the present application for reopening was instituted, which was a short time after the first hearing.

KIRBY J: Mr Jackson, I do not doubt the power of the Court to reopen and proceed, there is no question about that. But, out of your experience, can you tell me an instance where the Court has done so, and what the nature of the circumstances were when it was done? I do not remember sitting in a case where it has been done and obviously there are strong reasons why one would not wish to encourage re-agitation of such applications because there are many people who will simply not accept a final decision.

MR JACKSON: Your Honour, it happens relatively infrequently, of course, and this is, I think, the third one of these matters I have been in, in perhaps the last 10 years.

KIRBY J: Did any of them succeed?

MR JACKSON: Well, your Honour, I was for the respondent in the first one and I do not recall what happened.

KIRBY J: I see.

MR JACKSON: The second one did not, that is Cachia v Hayne in which it was held, your Honour, there was jurisdiction to do it, but would have to be an exceptional case. And, your Honour, all we seek to say, essentially, is that this is a case where the Court may have been under a misapprehension as to the situation. The Court either was or was not. If it was not, we fail. If it was, then the Court would need to consider the matter. Your Honour, I really cannot give your Honour an answer is better than that, I am afraid.

Your Honours, could I just say two things then, and if I could take your Honours to paragraph 6 and 7 of our outline and that is, our learned friends contend that the further examination of the applicant is limited to matters relating to her ability, or the ability of other defendants in the action, to pay if they are found liable. Your Honours, what we would seek to say about that is twofold. It does seem apparent that further examination of matters in the Supreme Court action, in substance, is likely, assuming that one can draw that exact division that is in a case of this kind.

Could I take your Honours to paragraph 9 of the supplementary application book at pages 93 to 94. There your Honours will see what was said on behalf of the respondent, particularly at the top of page 94. There were endeavours to investigate:

a further cause of action namely knowing receipt of trust property -

and so on. Now, your Honours, in the material on the other side, it is said if that is so, we will bring a new application. But, of course, what we would seek to say is what we say in the last sentence of paragraph 6. It does not matter whether it is new or old, the position, of course, is that the Full Court's reasons would apply.

Your Honours, could I say, finally, as your Honours will see in paragraph 7 of our submissions, we do not seek, on this application, to reargue fully the merits of these grounds. What we do say, however, is that it is apparent that there are differing judicial approaches to the operation of the provision, and that would otherwise merit the grant of special leave. Could I take your Honours simply to the passage to which we refer there in the original application book in the summary of argument at page 256. At page 256, your Honours will see in paragraph 54 point 2 what was said by your Honour the Chief Justice, with the other members of the Court of Appeal in New South Wales then agreeing, about the ambit of the Court's powers. On the other hand, one sees the approach taken in this case referred to in paragraph 54 point 3. And the approach taken by the Full Court in this case, is also mirrored in Western Australia as you will see from the passage referred to in paragraph 54 point 1. Your Honours, those are our submissions.

GLEESON CJ: Thank you, Mr Jackson. Yes, Mr Gray.

MR GRAY: May it please the Court. The liquidator opposes the application to reopen and oppose any grant of special leave, and it does so, essentially, for the same reasons as put on the last occasion. Could we start by saying that no point of principle arises. My learned friend has suggested - - -

GLEESON CJ: Well, I imagine you want to deal with the question of whether or not an assertion of fact made in the course of argument on the last occasion, amounted to a misstatement of the fact.

MR GRAY: Indeed, yes. I am happy to do that directly, if the Court pleases.

GLEESON CJ: Yes.

MR GRAY: If the Court pleases, in that respect we say this, that there were two strands of examination being conducted in respect of Ms Caboche. One related to what was the subject of litigation in what is called the "artworks fraud". That examination took place on three occasions: in April 1996, June 1997 and November 1997. That was the subject of an appeal process: Justice Debelle, the Full Court, Justice Hayne for a stay, and then to the High Court for special leave, and that is the issue that is currently before the Court. It is said, in regard to that matter, where there is an inquiry about the facts of that case for Ms Caboche, that there was an improper purpose.

The other strand of inquiry was entirely different. It related to an examination about available assets to meet any judgment that might be obtained. Those examinations occurred on other occasions. With the exception of 24 November 1997, both matters were the issue of examination. The matter in regard to assets and ability to meet a possible judgment, was the subject of a separate appeal to Justice Debelle heard in 1998. No appeal was taken from that. In the course of the judgments, in the supplementary appeal book papers, his Honour specifically noted that Ms Caboche did not oppose that examination.

When the matter was before the High Court on the last occasion, and it was said the examinations were complete, what was being referred to were the examinations, the subject of the then proceedings in the High Court, not the inquiries about available assets, because there was no challenge in that respect. Now, if the Court pleases, shortly before the High Court application for special leave - - -

KIRBY J: Assuming that point to have been adequately dealt with, what do you say about Mr Jackson's suggestion, going back to the substance of the matter, that there is a disparity between what the Chief Justice said in the Court of Appeal in New South Wales in the Hong Kong Bank Case and what the Full Court said in this case?

MR GRAY: The difficulty, with respect, with that submission is that the Full Court specifically quoted from the Hong Kong Bank Case the precise passages, with approval. There is no difference.

KIRBY J: This passage at the top of page 257, does that indicate some ambivalence on the principle that is being applied? It is suggested to us that these two little passages, the one from what the Chief Justice said in Hong Kong Bank, and the other, at the top of page 257, show an ambivalence.

MR GRAY: Those precise passages are picked up and applied by Justice Lander in the Full Court, and approved. There is no difference. Justice Lander, in the first application book, at pages 116 approves Hamilton v Oades, and 164 specifically picks up the very paragraph in Hong Kong Bank that Mr Jackson refers to.

KIRBY J: Any way we do not come to this, unless some very strong reason is shown to reopen the decision which the Court has already made.

MR GRAY: Yes. In our respectful submission, the submission on the last occasion about the examination being complete was absolutely correct. What needs to be understood is to what examinations the Court was being addressed about. On the point of principle, if the Court pleases, the point that was being articulated in the special leave case was that, when the Full Court in South Australia said one could examine to gather evidence and, in contrast, information, that that was an error. And some remarks of your Honour the Chief Justice in Hong Kong Bank were referred to.

When one looks at the material, the very passages referred to in Hong Kong Bank were cited, approved and adopted in the South Australian Full Court. In fact, in the Hong Kong Bank on the earlier page, your Honour Chief Justice Gleeson applies Hugh J Roberts which, in fact, contains the very statement that is appropriate to gather evidence and that, of course, draws on the High Court in Hamilton v Oades in the judgment of Chief Justice Mason, approved in turn in Gould v Brown by Chief Justice Brennan and Justice Toohey. There is no point of principle involved in this case.

GLEESON CJ: Thank you, Mr Gray. Yes, Mr Jackson.

MR JACKSON: Your Honours, may I say two things. Our learned friend referred to the Hong Kong Bank Case and its suggested adoption in the Full Court. Could I just take your Honours to what was actually said, and that is page 164 of the original application book.

KIRBY J: Which page?

MR JACKSON: Page 164, your Honour. Your Honours will see, at the top of the page, there is a reference to the Hong Kong Bank Case and the relevant passage, said without comment. Then, your Honours, will see some comment about it in the last two paragraphs on the page. When one comes what to was actually determined by his Honour, you see that at page 165, and one comes then to the last sentence of the second paragraph on page 165. It is there one sees the expression:

Consequently he is entitled to use the examination process to gather information -

and then the second last line:

and moreover for the purpose of obtaining and presenting evidence to the court to support the claim.

That is the passage extracted.

KIRBY J: But that is to be read in the context where their Honours have already quoted the Hong Kong Bank principle.

MR JACKSON: Yes, your Honour. But, your Honour, could I just say - - -

KIRBY J: There certainly is a little bit of a disharmony between the two. But all of this assumes that you get over your first barrier which seems to me to be your difficulty.

MR JACKSON: Your Honour, I accept that. What we would seek to say, however, is that it is apparent from the material that I referred to earlier that, in fact, the examination may well go on to matters dealing with the substance of the litigation.

GLEESON CJ: The application to reopen is refused. Quite apart from the dispute between the parties as to whether, in context, a statement made by Senior Counsel in the course of argument on the earlier occasion misstated the facts, the Court is of the view that in the light of the facts as now clarified, the decision on the original application for special leave to appeal should stand.

Can you resist an order for costs, Mr Jackson?

MR JACKSON: No, your Honour.

GLEESON CJ: The applicant must pay the respondent's costs.

AT 9.51 AM THE MATTER WAS REFUSED