Swiss Partners & Ors v Jeffcott Holdings Ltd & Ors A10/2000 [2000] HCATrans 59 (2 March 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A10 of 2000

B e t w e e n -

SWISS PARTNERS PTY LTD, CRAIG PETER BALL and MICHAEL ANDREW WHITING

Applicants

and

JEFFCOTT HOLDINGS LIMITED (IN LIQUIDATION)

First Respondent

MARTIN FRANCIS BYRNES

Second Respondent

TIMOTHY PAUL HOPWOOD

Third Respondent

ROBERT GRAHAM DOUGLAS HILL

Fourth Respondent

STEPHEN ELLIOT YOUNG

Fifth Respondent

ALEXANDER JOHN PAIOR

Sixth Respondent

JOHN IRVING

Seventh Respondent

Application for expedition

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 2 MARCH 2000, AT 9.15 AM

Copyright in the High Court of Australia

__________________

MR N. LUCARELLI, QC: If your Honour pleases, I appear on behalf of the applicants. (instructed by Ebsworth & Ebsworth)

MR I.C. ROBERTSON: If your Honour pleases, I appear for the respondent. (instructed by Minter Ellison)

HIS HONOUR: Yes, Mr Lucarelli.

MR LUCARELLI: Your Honour, by this application the applicants seek orders for expedition of the - - -

HIS HONOUR: I have read the papers and, in the rather unusual circumstances, I would be prepared to grant expedition. There are two dates that are potentially

available. One is 17 March, the list in Sydney. The list is full but the Chief Justice would be prepared to add this case to the list. There is a hearing by video link on the 24th in Adelaide which give the parties less time. My inclination is to give you, subject to hearing what Mr Robertson has to say about this matter - perhaps I should ask him. What is your attitude towards this, Mr Robertson?

MR ROBERTSON: Your Honour, we do not have any particular opposition or objection to the expedition. We do raise two matters for your Honour's consideration, though. The first is that the expedition of this matter will occasion, we would submit, some unnecessary costs to our client because substantially the same issues are going to be ventilated in the Duke Case. We would submit that an appropriate condition for this matter being expedited would be some condition in relation to my clients' costs.

HIS HONOUR: I am not sure about that. What I have got in mind, and what I am going to put to Mr Lucarelli in a moment, is that if he wants the matter heard in Sydney, then his client should pay the additional costs incurred by your side in going to Sydney. Otherwise, I would put the matter in for 24 March to be heard by way of video link. That gives seven days less, of course, to get the appeal prepared, but subject to anything further you might want to say about it, that is the condition I would put to Mr Lucarelli.

MR ROBERTSON: Your Honour, the only other matter I wish to raise is more apposite to the actual special leave application than it is to this application.

HIS HONOUR: Yes. There is nothing further you want to say about these expedition application?

MR ROBERTSON: No, your Honour.

HIS HONOUR: Mr Lucarelli, the ball is in your court. You can have Sydney, but on condition that you pay the additional costs, which I imagine would be costs such as plane fares, accommodation costs and perhaps even the extra time taken for counsel to get there, which would no doubt be charged to their client. Or you can have the video link on 24 March.

MR LUCARELLI: Your Honour, we seek to have the matter on as soon as possible. I am instructed that if an order can be framed which provides for reasonable costs in terms of the additional costs, then I am to seek 17 March. I just do not want it to be open ended, naturally, your Honour, which I am sure your Honour did not intend, but I am speaking out of an abundance of caution.

HIS HONOUR: Yes, thank you. Mr Robertson, what do you say as to an order that I grant expedition, direct that the matter be heard in the Sydney special leave application on Friday, 17 March, upon condition that the applicant pay your reasonable costs which are incurred over and above those that would have been incurred if the application had been heard in Adelaide on 24 March.

MR ROBERTSON: There is nothing I can further advance, your Honour.

HIS HONOUR: Yes. Well, that being so, I will grant the application for expedition in this matter. I direct that the matter be heard in the Sydney list, Friday, 17 March. It is a condition of the grant of expedition that the applicant pay the reasonable costs of the respondents incurred over and above those that would have been incurred by the respondent if the matter had been heard in Adelaide on 24 March this year. I certify for counsel. I make the costs of this application costs in the special leave application.

Is there anything further?

MR ROBERTSON: No, your Honour.

HIS HONOUR: Sorry, I think I should add this further condition: it is a condition of the grant of expedition that the applicant obey all directions of the Registrar in terms of having the application book ready for hearing in Sydney on 17 March.

MR LUCARELLI: Your Honour, to some extent that will depend on when the respondents will have their outline of submission available, otherwise we are virtually ready to go. Last time, in connection with the first special leave application, it was literally half a page, saying that it was a matter of public importance, but complaining about the vehicle. I am wondering if Mr Robertson could give some indication as to when that will be available.

HIS HONOUR: Yes. Mr Robertson, could you indicate when you would be in a position to file your summary of argument?

MR ROBERTSON: Your Honour, I would have thought that we could get it in within 7 days, say, by 9 March.

HIS HONOUR: Yes. I am told if that is done it is sufficient time to get a book ready. You might want to put on a reply, I suppose.

MR LUCARELLI: We could do that very quickly. I am wondering whether it could be brought back just one day, perhaps to the 8th, just to make sure that we do not run out of time.

HIS HONOUR: Yes. Well, that seems reasonable, having regard to the history of this matter and the fact that there has already been a special leave application.

MR ROBERTSON: We are happy to accommodate that, your Honour.

HIS HONOUR: Yes. I direct that the respondents file their summary of argument by 4 pm on 8 March 2000.

MR LUCARELLI: If your Honour pleases. We are indebted to your Honour for bringing the matter on so quickly.

HIS HONOUR: Yes. Thank you, Mr Lucarelli. There being nothing further, adjourn the Court.

AT 9.23 AM THE MATTER WAS CONCLUDED