Dive v Chapman B88/1999 [2000] HCATrans 483 (24 August 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B70 of 1999

B e t w e e n -

JOHN DOONEY

Plaintiff

and

MORRIS JAMES CLIFFORD HENRY (also known as JIM HENRY)

Defendant

Office of the Registry

Brisbane No B71 of 1999

B e t w e e n -

JOHN DOONEY

Plaintiff

and

STEPHEN CHAPMAN, Deputy Commissioner of Taxation

Defendant

Office of the Registry

Brisbane No B79 of 1999

B e t w e e n -

VINCENT MORGILLO

Plaintiff

and

SPENCER ROSS DE VERE

Defendant

Office of the Registry

Brisbane No B80 of 1999

B e t w e e n -

VINCENT MORGILLO

Plaintiff

and

STEPHEN CHAPMAN, Deputy Commissioner of Taxation

Defendant

Office of the Registry

Brisbane No B86 of 1999

B e t w e e n -

IVAN GORSHKOV

Plaintiff

and

MARGARET MARY KEY

Defendant

Office of the Registry

Brisbane No B87 of 1999

B e t w e e n -

IVAN GORSHKOV

Plaintiff

and

STEPHEN CHAPMAN, Deputy Commissioner of Taxation

Defendant

Office of the Registry

Brisbane No B88 of 1999

B e t w e e n -

JEREMY DIVE

Plaintiff

and

STEPHEN CHAPMAN, Deputy Commissioner of Taxation

Defendant

Office of the Registry

Brisbane No B89 of 1999

B e t w e e n -

JEREMY DIVE

Plaintiff

and

MARGARET MARY KEY

Defendant

Office of the Registry

Brisbane No B5 of 2000

B e t w e e n -

WILLIAM GAIR

Plaintiff

and

STEPHEN CHAPMAN, Deputy Commissioner of Taxation

Defendant

Office of the Registry

Brisbane No B7 of 2000

B e t w e e n -

MATTHEW MOELIKER

Plaintiff

and

MORRIS JAMES CLIFFORD HENRY (also known as JIM HENRY)

Defendant

Office of the Registry

Brisbane No B8 of 2000

B e t w e e n -

MATTHEW MOELIKER

Plaintiff

and

STEPHEN CHAPMAN

Defendant

For Judgment

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 24 AUGUST 2000, AT 11.14 AM

Copyright in the High Court of Australia

______________________

(Reasons for judgment were delivered)

HIS HONOUR: Are there any further matters.

MR LOGAN (instructed by the Australian Government Solicitor): Will your Honour certify for counsel, please.

HIS HONOUR: Yes, I would certify for counsel.

MR LOGAN: Your Honour, there is one further matter, and that arises in one of the cases only, and that is Mr Gair's case which is - - -

HIS HONOUR: Just before you do that, I should say I publish my reasons.

MR LOGAN: Yes, I am sorry, your Honour, of course.

HIS HONOUR: Go ahead, Mr Logan.

MR LOGAN: Your Honour might recall that in one that there was a summons which was stood over there which sought the joinder of solicitors in Mr Gair's case. It was the only one where there was that particular application. That was stood over really with a view to the disposal of the substantive issues and then, depending on that

disposal, to the prosecution of a claim in respect of costs against the solicitor concerned.

HIS HONOUR: That is Mr Sockhill, is it?

MR LOGAN: That is right, Mr Sockhill.

HIS HONOUR: Mr Logan, I did discuss in my reasons - it may not be an answer to what you are raising with me, but I did discuss the question of an order against the solicitor because that matter was argued, I thought, except that Mr Sockhill was not heard on it.

MR LOGAN: That is so.

HIS HONOUR: But I think you presented your argument, in effect, on it. Your argument depended, I thought, upon - - -

MR LOGAN: Certainly, to get to first base one had to succeed on the substantive matters which apparently has occurred.

HIS HONOUR: Yes. I have actually dealt with the matter of indemnity costs - I am sorry, the possibility of costs against Mr Sockhill - and made a decision not to award them. Now, if your view is that you have not been fully or properly heard on that matter, I would set another date. I would withdraw that finding and allow it to be argued. But I am fairly strongly disposed against the idea, I must say. That does not mean to say that you would not be entitled to be further heard on it, if you wanted to be. I think I did hear you, to some extent, on it, did I not? Am I wrong about that?

MR LOGAN: I certainly wanted to be heard at that stage but it was not - it was a quite separate summons with Mr Sockhill. It was the only one where there was that discrete summons. That is B5 of 2000 and that was stood over.

HIS HONOUR: Right. Could I just see those reasons just to make sure that I have not made - yes, in B5 the substantive issues were argued, that is right, is it not?

MR LOGAN: Yes.

HIS HONOUR: All right. I do recollect, now, that the summons was stood over. Do you want to agitate that matter?

MR LOGAN: I do have instructions to press that particular dimension of it, yes.

HIS HONOUR: You may not be in a position to argue that this morning.

MS JULIAN-ARMITAGE (instructed by Rea & Sockhill): I am not in a position to argue it today. If this was to be the case, my instructions are to seek another date or to have the argument by way of written submissions.

HIS HONOUR: You have not had a chance to see this, either of you, but what I had said was:

Mr Sockhill has not been heard.....so far on the question whether he should pay the costs personally, and whether, if he should, he should do so on an indemnity basis. On balance, I have decided not to make such an order. The ultimate responsibility for costs is a matter that will have to be resolved between solicitor and client.

You want me to deal with this matter, Mr Logan, do you not?

MR LOGAN: Yes, although there is a question of whether - it is obviously a serious step to make the application and the solicitor concerned is not here today and the application was, it must be said, stood over generally without any particular date being fixed for that. What your Honour might be disposed to do in those circumstances is to take up the suggestion of my learned friend about an exchange of outlines and perhaps appoint a date at some convenient time.

HIS HONOUR: Yes.

MR LOGAN: It may also, your Honour, be a matter in respect of which it would be apt for a direction in respect of - if the solicitor is to put on any material in relation to the application, to direct that that be done by a particular time.

HIS HONOUR: I take it, Mr Logan, any material you want to file on that issue you have filed.

MR LOGAN: Such as is available, that is right, yes. That is already filed.

HIS HONOUR: Your position would be that you may - apart from submissions, would you want to file anything further?

MS JULIAN-ARMITAGE: I would imagine that affidavit material would be required.

MR LOGAN: It is a case where oral submissions would be - a hearing in person would be sought but, with respect, there would be advantage in foreshadowing any arguments with written submissions exchanged.

HIS HONOUR: That relates only to B5, does it, Mr Logan?

MR LOGAN: Just to B5, that is right, yes.

HIS HONOUR: Not in relation to any of the other proceedings?

MR LOGAN: B5 is the only one where that particular issue is raised, yes.

HIS HONOUR: But there is no reason why I cannot make an order at this stage that the costs be paid on an indemnity basis, is there?

MR LOGAN: For each of the others there is no reason and, indeed, in B5 itself, the substantive orders - - -

HIS HONOUR: I have held that it is hopeless, as hopeless as the others, so there is no reason why there should not be an order for indemnity costs.

Mr Logan, if any factual issues arise, I could refer them to the Federal Court, could I not? It is obviously very inconvenient that the High Court should be determining factual questions.

MR LOGAN: Yes. Those factual issues now, perhaps, would only be in relation to the costs side of - it has obviously got an inconvenience about it but it would, in my submission, be - it is certainly inconvenient but if it is the costs dimension only, that would be better dealt with before your Honour.

HIS HONOUR: What is the date of your summons, Mr Logan?

MR LOGAN: Just to answer your Honour's question further about that remission aspect, section 44 of the Judiciary Act would enable the remission of any matter, and this is not a subsection(2) matter, that is pending to be remitted "to any federal court", so that would be the High Court, and then "subject to any directions.....further proceedings.....shall be as directed by the" Federal Court if there were the remission. The summons concerned was filed on 15 May.

HIS HONOUR: All right. These are the orders that I would make.

1. In each of the actions, which I have already enumerated, the action be permanently stayed;

2. In each of them, the respondent plaintiffs pay the applicant defendant's costs of the action, including this application, on an indemnity basis.

3. In action B5 of 2000 I order that:

(i) each party file any further material intended to be relied on before 25 September next;

(ii) that written submissions be filed by each party before 10 October next; and

(iii) that the applicant's summons be adjourned to a date to be fixed.

I can then decide what further steps or what further should be done in relation to the matter at that stage.

Is that satisfactory to you?

MS JULIAN-ARMITAGE: Yes, your Honour.

MR LOGAN: Your Honour's orders will have that certification as to counsel.

HIS HONOUR: And I would certify as to counsel in all of the actions. That involves some alterations to the form of my orders in one aspect of my judgment. I will not publish my reasons presently. I will publish them within half an hour or so and a copy will be available to each party at that stage. Is that satisfactory?

MR LOGAN: It certainly is, your Honour, yes.

MS JULIAN-ARMITAGE: Thank you, your Honour.

HIS HONOUR: Is there anything further?

MR LOGAN: No, thank you, your Honour.

MS JULIAN-ARMITAGE: No, your Honour.

HIS HONOUR: Thank you.

AT 11.27 AM THE MATTER WAS CONCLUDED