Placer (Granny Smith) Pty Ltd v Thiess Corporation Pty Ltd P47/2000 [2000] HCATrans 655 (27 October 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P47 of 2000

B e t w e e n -

PLACER (GRANNY SMITH) PTY LTD

Applicant

and

THIESS CORPORATION PTY LTD

Respondent

Application for special leave to appeal

McHUGH J

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 27 OCTOBER 2000, AT 9.34 AM

Copyright in the High Court of Australia

MR J. GILMOUR, QC: If the Court pleases, with my friend, MR C.M. DUNCAN, I appear for the applicant. (instructed by Mallesons Stephen Jaques)

MR W.S. MARTIN, QC: If the Court pleases, with my learned friend, MR P.G. CLIFFORD, I appear on behalf of the respondent. (instructed by Hollingdales)

McHUGH J: Yes. I had the Deputy Registrar bring to the parties' attention the fact that I hold shares in Leighton Contractors, which is the holding company of which Thiess is a subsidiary. Is there any objections to me sitting on this matter?

MR GILMOUR: For our part, no, your Honour.

MR MARTIN: No, not for our part, either.

McHUGH J: Yes, Mr Gilmour?

MR GILMOUR: Your Honours will see before I begin my submissions that we have an amendment to our application to introduce a new ground 2.

McHUGH J: I understand that. You raised the question of equitable compensation. Mr Martin, I understand that you object to it.

MR MARTIN: We do, your Honours, and if I could just outline the grounds of objection. We received the summary of argument and a folder of cases during the course of Wednesday when, as your Honours will be aware, I was engaged in other matters. They raise issues of considerable complexity which we, of course, have not had time to address.

McHUGH J: Damages for breach of fiduciary duty was raised at the trial, was it not?

MR MARTIN: No. In order for this ground to be made out, there would need to be substantial amendments to the pleadings.

KIRBY J: There is a lot of money involved in this matter. It may be that the price of raising it at such a late stage - - -

McHUGH J: But at 258 of the book, line 15, his Honour said:

I therefore turn to Placer's counterclaim -

and dropping down to line 15 -

damages under the following heads:

breach of fiduciary duty

MR MARTIN: Your Honour, the case pleaded below was breach of fiduciary duty in respect of negotiations prior to the contract.

McHUGH J: But his Honour did find, did he not, that there were fiduciary obligations after the contract?

MR MARTIN: Outside the pleaded case.

HAYNE J: Well, this presents the further difficulty that we are not even vouchsafe the pleading. The case should undergo this sort of reconstruction at this stage is a matter for remark.

MR MARTIN: Indeed, your Honours, and that is the point of prejudice that I was coming to. In order to properly address these issues, your Honours need the pleadings, your Honours need the way in which it was dealt with by the trial judge to be identified, your Honours need to know why it was not, in fact, dealt with by the Full Court, and your Honours would need to see exactly why, in the scope of the leave to amend the pleadings that would be required. Equitable compensation was never claimed, at any level; the words have never been mentioned before, at first instance, or on appeal. Now, in order for us to address that, the scope of the amendment that would be required would take me a couple of minutes, but I am happy to do it.

KIRBY J: But in principle it is simply another legal category on the facts of the case, is it not?

MR MARTIN: No, your Honour, it would raise quite separate issues to those that were ventilated before.

KIRBY J: Such as?

MR MARTIN: Well, the range of damages available. As I say, the breach of fiduciary duty was limited to the antecedent negotiations.

McHUGH J: Yes. The doctrine, so far as equitable compensation is concerned, is that maybe questions of causation, remoteness, do not have the same effect in terms of equitable compensation as they do in terms of common law.

KIRBY J: But causation was found against you.

MR MARTIN: It would have to be separately assessed, your Honour. Our proposition would be if and when an application for were made to amend the pleadings, then consideration would have to be given to the question of whether additional evidence might have been led had the pleadings been in that form at trial.

McHUGH J: Well, Mr Martin, it may well be that Mr Gilmour will not get very far in his attempt to change the ground at this late stage, but, subject to hearing what he has to say, would you be prejudiced by the matter being adjourned on the basis that Placer pay the costs of today?

MR MARTIN: Not irremediably, your Honour. We, of course, can come back. But we are here. Our submission, essentially, is that the rules that exist and the time limits that are imposed for the efficient disposition of the very substantial business of this Court on special leave applications should not be frustrated.

McHUGH J: Well, I understand that, but - - -

HAYNE J: Nor should the work of the Full Court be frustrated by 90-odd paragraph notices of appeal, Mr Martin. That is an unusual submission coming from your end of the Bar table.

McHUGH J: Yes, and indeed, I was surprised to see that both counsels said that the notice of appeal could be disregarded.

MR MARTIN: Yes, because the topics were dealt with in the submissions, your Honours, and therefore the notice of appeal did not, in fact, occupy any debate or time - - -

McHUGH J: But the notice of appeal should reflect the record so that one knows what was the point that was actually decided. Mr Gilmour, why should not the matter be adjourned on the basis that you pay the costs of today, and on a solicitor and client basis?

MR GILMOUR: Your Honour, for this reason: we take issue with our friend's submission as to what the Court below, either before the Full Court or before the trial judge - damages, loosely described, for breach of fiduciary duty were a live issue on the pleadings and at trial. Indeed, his Honour, the trial judge, at 263, one finds, assessed damages for breach of contract. He went on to say, at about line 5: "This is also the basis for assessing damages for breach of fiduciary duty" .

McHUGH J: I appreciate that, but nevertheless, the case that you now seek to make is quite a different case from the case that was originally filed in this particular Court. Your opponent says, with some justification, that he is not in a position to deal with it and, it seems to me that we must accept what counsel says in that regard. That being so, the matter has to be adjourned, and it seems to me that you have to pay the costs.

KIRBY J: Unless you abandon the point.

MR GILMOUR: No, we do not wish to abandon it, if it please, your Honour, so we cannot resist.

KIRBY J: You will have to pay the price. There is a lot of money in this case.

MR GILMOUR: Yes, of course, your Honour.

MR MARTIN: Your Honours, can I just make a submission in relation to those costs? If the matter were to go on today, we would, of course, have the benefit of appearing before your Honours in person. If it is to be adjourned, it seems unlikely that we will have that. It may well be that our opponents will wish to go to Canberra. If they do, in our submission, those costs should include our costs of attendance.

KIRBY J: Why do you go to Canberra? We have a video link. The statistics of the Court show it makes no difference to the success rates, failure rates.

McHUGH J: Yes, there is a myth that you do better in person than you do in appearing on the video link. The Court has analysed the statistics and that is quite wrong.

HAYNE J: It is a myth often promoted by counsel for some reason. I cannot imagine why.

MR MARTIN: I will not press the point any further, your Honour.

McHUGH J: The Court is of the view you can have your adjournment, Mr Gilmour, but it is on the basis that you pay the costs of today on a solicitor and client basis.

MR GILMOUR: If your Honours please.

McHUGH J: Yes. The matter will be adjourned.

AT 9.42 AM THE MATTER WAS ADJOURNED