Elders Ltd & Ors, Ex parte - Re Drummond & Ors A23/2000 [2000] HCATrans 458 (10 August 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A23 of 2000

In the matter of -

An application for Writs of Certiorari and Mandamus against DOUGLAS PATON DRUMMOND (a Justice of the Federal Court of Australia)

First Respondent

ROSS ALAN SUNDBERG (a Justice of the Federal Court of Australia)

Second Respondent

SHANE RAYMOND MARSHALL (a Justice of the Federal Court of Australia)

Third Respondent

CHRISTOPHER MARK SWINBANK

Fourth Respondent

GREAT LAKES REINSURANCE (UK) PLC

Fifth Respondent

THE GAN INCENDIE ACCIDENTS COMPAGNIE FRANCAISE D'ASSURANCES ET DE REASSURANCES INCENDIE ACCIDENTS ET RISQUE DIVERS

Sixth Respondent

ROYAL INSURANCE (UK) LIMITED

Seventh Respondent

LIBERTY MUTUAL INSURANCE COMPANY (MASSACHUSETTS) LIMITED

Eighth Respondent

SCOTTISH LION INSURANCE COMPANY LIMITED

Ninth Respondent

SPHERE DRAKE UNDERWRITING MANAGEMENT LIMITED

Tenth Respondent

LONDON ASSURANCE

Eleventh Respondent

TRINITY INSURANCE COMPANY LTD

Twelfth Respondent

Ex parte -

ELDERS LIMITED, DEREL ERF LIMITED and FOSTERS BREWING GROUP LIMITED

Applicants

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 10 AUGUST 2000, AT 10.06 AM

Copyright in the High Court of Australia

_____________________

HIS HONOUR: Before you start, I should inform you that I have a certificate to the effect that the Registrar has been informed by Lander & Rogers, solicitors for the fourth to tenth respondents in the matter that those respondents do not wish to make any submissions and will submit to any order of the Court, save as to costs. Yes, Mr Wells.

MR W.J.M. WELLS, QC: If your Honour pleases, I appear with my learned friend, MR A.L. TOKLEY, for the applicants. (instructed by Johnson Winter & Slattery) In that respect, your Honour, I wonder if I can provide to your Honour two documents. One is a copy of the sealed order of the Full Court of the Federal Court which I do not think found its way into the affidavit. The other is a further draft of the proposed order nisi.

HIS HONOUR: Thank you. Mr Wells, just before you proceed, and I do not want to pre-empt any argument, but what I would be minded to do is to adjourn your application to the same date as your application for special leave. Do you have a view about that?

MR WELLS: Your Honour, only this, that the conditions upon which, on the one hand, an order nisi might be granted, and on the other hand special leave to appeal might be granted, are different.

HIS HONOUR: Yes, I am not suggesting that you should in any way forego either application, that is to say for the prerogative writ or for your special leave. There is a lot of common ground in the arguments, I would have thought. I mean, if you can make out a case for an order nisi, then it would almost be inevitable that you would also get special leave, I would have thought. In those circumstances, it might be repetitive - I mean, involve unnecessary repetition - to have two arguments. I do not know whether you are aware that what often happens in this Court, in any event, is that the applications for orders nisi are referred to a Full Court anyway.

MR WELLS: Yes, I am aware of that, your Honour.

HIS HONOUR: I intimated I would grant one in Brisbane. In the end, I think the parties resolved it, but I was prepared to make an order nisi myself there. But it has become a little unusual, I think.

MR WELLS: Unusual in the sense of a single Justice granting the order.

HIS HONOUR: Yes, even an order nisi seems to have become somewhat unusual.

MR WELLS: Yes. If your Honour would pardon me for a moment. I think I can make a response to that. We would not have, I think, a strong - or at least a strong legitimate ground against the course that your Honour proposes. There is obviously convenience in doing it that way. There are differences.

HIS HONOUR: Oh yes, there are different tests entirely. I accept that. But coincidentally in this case, anything that will get you an order nisi, tentatively I would say, would, I think, get you special leave. Assuming you can show a prima facie case, I would have thought you would get special leave and vice versa.

MR WELLS: Yes, indeed, your Honour. That is certainly - that is not always - - -

HIS HONOUR: I say quite frankly that that would be my view. I may not be sitting on the application, but anybody who can make out a case for an order nisi, I would have thought, would certainly be likely, very likely, to get a grant of special leave.

MR WELLS: That view has been expressed by at least one other member of the Court, I think, sitting to hear an application for an order nisi.

HIS HONOUR: I do not think there would be any prejudice to you because I think the matter would come on relatively soon, and there does not seem to be any particularly urgent issue in this case, is there? People want to get their money, I understand that.

MR WELLS: Yes, and from that point of view the matter has been going for some little while, your Honour.

HIS HONOUR: If you got an order nisi, it would be some time - I would not think you would get a hearing before the Full High Court any sooner than you would get a hearing - or any later than you would get a hearing of an appeal, assuming you got special leave.

MR WELLS: Yes. I am reminded of one thing, your Honour, that perhaps I ought to raise. There are some difficult decisions that had to be made in this case as to the course that should be followed. Your Honour may recall that the first half of this year has been occupied in this Court, amongst other things, in dealing with what I will call the remedial legislation following Wakim's Case and that has been one of the issues that we have had to address, of course, in determining what course to follow.

As your Honour knows, the Full Court has in effect stayed these proceedings and we would not be, as your Honour can see from the fact that we have taken the course that we have, we would not be anxious to run the gamut of having to commence Federal Court proceedings again asserting what the Full Court has said is missing. But if that course were available, the longer that is put off, the greater the additional problems that arise in relation to - - -

HIS HONOUR: When would the limitations period expire?

MR WELLS: There is an issue about when it might ultimately conclude - - -

HIS HONOUR: There might be an issue about that, I gather. I would think any prudent solicitor, if there were any possibility of an issue at all, might be filing something anyway, simply to protect the position.

MR WELLS: That is certainly a view, but we are not anxious to, by doing that, prejudice the course of these proceedings.

HIS HONOUR: No, but you would not. Indeed, in a sense, these proceedings are irrelevant. Say you were to lose these proceedings, I am not suggesting that that would be or would not be the outcome, but if you were, you would still want - need to have filed, as a protective measure, I would have thought, proceedings in the Federal Court. So, in that sense, this is not relevant to any protective measures that you might choose to take. Belt and braces sorts of measures

MR WELLS: I think your Honour might be right. Certainly, we had that particular course very much under our eyes, to make sure that that does not slip away from us.

HIS HONOUR: I must say, Mr Wells, I cannot see any strong reason why I should not do that and in terms of efficiency and use of the Court time, it commends itself to me.

MR WELLS: We cannot raise a strong reason against it, your Honour. Obviously our preferred course would be to secure an order nisi, whatever might then happen on the special leave application, if indeed it proceeded.

HIS HONOUR: What I think I will do, I think I will adjourn it to be heard with the special leave application. I will try to make some arrangements to give you some expedition.

MR WELLS: I would be very much obliged.

HIS HONOUR: Also, in the circumstances - it will be a matter for the Chief Justice - but I think I would try to arrange to give you a special slot and perhaps ensure that we get three Judges, rather than two, to sit on it. As I say, it will be a matter for the Chief Justice, but that would be my preference and that is what I will try to do.

MR WELLS: Thank you, your Honour.

HIS HONOUR: I think the only order I need make is that the application for prerogative relief be adjourned to be heard with the application for special leave filed in this matter. Costs reserved. As I say, I will do what I can. I was just consulting with the Registrar to make sure that these matters were noted and can be pursued.

Could I ask you this. I take it your expectation would have been, assuming you had got an order nisi, that you more likely than not had the matter argued in Canberra. What I am really asking you is did you have any preference or view about that?

MR WELLS: No, your Honour. If that were the convenient place, then that is where we would go.

HIS HONOUR: It just might be easier to get you a special slot and three Judges in Canberra. But the Registrar will remain in touch with the solicitors about that matter.

MR WELLS: Thank you, your Honour.

HIS HONOUR: Is there anything further then?

MR WELLS: Not on that basis, your Honour, no.

HIS HONOUR: Thank you.

AT 10.17 AM THE MATTER WAS CONCLUDED