Elders Limited & Ors, Ex parte Re Drummond (a Justiceof the Federal Court of Australia) & Ors A23/2000 [2000] HCATrans 728 (28 November 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A11 of 2000

B e t w e e n -

ELDERS LIMITED

First Applicant

DEREL ERF LIMITED

Second Applicant

FOSTERS BREWING GROUP LIMITED

Third Applicant

and

CHRISTOPHER MARK SWINBANK

First Respondent

GREAT LAKES REINSURANCE (UK) PLC

Second Respondent

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

Third Respondent

ROYAL INSURANCE (UK) LIMITED

Fourth Respondent

LIBERTY MUTUAL INSURANCE COMPANY (MASSACHUSETTS) LIMITED

Fifth Respondent

SCOTTISH LION INSURANCE COMPANY LIMITED

Sixth Respondent

SPHERE DRAKE UNDERWRITING MANAGEMENT LIMITED

Seventh Respondent

LONDON ASSURANCE

Eighth Respondent

TRINITY INSURANCE COMPANY LTD

Ninth Respondent

Application for special leave to appeal

Office of the Registry

Adelaide No A23 of 2000

In the matter of -

An application for a Writ 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

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 28 NOVEMBER 2000, AT 2.56 PM

Copyright in the High Court of Australia

__________________

MR W.J.N WELLS, QC: If the Court pleases, I appear with MR A.L. TOKLEY for the applicants in both matters. (instructed by Johnson Winter & Slattery)

MR K.G.M. HOWDEN: If the Court pleases, I appear for the insurer respondents in both matters. (instructed by Lander & Rogers)

HAYNE J: I have a certificate from the Deputy Registrar that she has been informed by the Australian Government Solicitor, solicitors for the first to third respondents in matter A23 of 2000, that the judges of the Federal Court named as the first to third respondents will abide by the decision of the Court. Mr Howden, I take it that your appearance is for the fourth to twelfth respondents in A23 and the first to ninth in A11. Is that right?

MR HOWDEN: That is so, your Honour, yes.

HAYNE J: And the certificate, therefore, that your clients will not be represented has, as it were, been overtaken by events?

MR HOWDEN: It has, yes.

HAYNE J: Yes, thank you. Now, Mr Howden, we think it may be of assistance if we were to hear first from you as to why leave should not be granted and as to why the applicant for constitutional writs and other relief should not be directed to make their application by notice of motion returnable before a Full Court.

MR HOWDEN: My clients' position, your Honour, is that the applications are not opposed.

HAYNE J: Yes, I see.

MR HOWDEN: I am not competent to advance any reason why the prerogative writs should not go.

HAYNE J: But you do not seek to be heard against a grant of leave or against a direction that the applicants for constitutional writs make their application to a Full Court?

MR HOWDEN: No.

HAYNE J: Is that the position? Yes, thank you. Now, Mr Wells, if we were minded to make a grant of leave and to make an order that the application be made on notice before a Full Court, what else, if anything, would you say we ought to deal with this afternoon?

MR WELLS: I do not think I can think of anything further, your Honour.

CALLINAN J: While you are ahead, Mr Wells, you would like to stay there. Is that right?

MR WELLS: Indeed, your Honour.

HAYNE J: Strange that. I speak only for myself, Mr Wells, it does seem that this dispute is at a rather odd stage, with an application to amend not yet passed upon, and whilst the question of the jurisdiction of the Federal Court to grant it is at least arguable, perhaps more than that, it does seem that the parties are about to embark on a dispute that is at least one stage, perhaps several stages, removed from actually getting on and trying their dispute. It is perhaps an unfortunate position in which the parties find themselves and, no doubt, they and their advisers will pay attention to it. But at some point, somewhere, somebody might actually have to try this suit, might they not?

MR WELLS: We are anxious for that to happen, your Honour.

HAYNE J: Yes.

CALLINAN J: Or otherwise resolve it.

MR WELLS: Indeed, your Honour.

HAYNE J: Yes. Well, there will be a grant of leave. In the application for prerogative or constitutional writ and like relief, there will be a direction that that application be made on notice, returnable before a Full Court.

What estimate of time would you give for the hearing of the two matters, if they eventually were to come to hearing, gentlemen?

MR WELLS: Half a day, your Honour.

HAYNE J: Half?

MR WELLS: Yes.

HAYNE J: Yes. Are you in a position to offer any estimate, Mr Howden?

MR HOWDEN: Your Honour, it is unlikely that we should occupy very much more of the Court's time.

HAYNE J: Yes. It seems to me, at least, that it would be about half a day. There we are. Yes, Mr Wells.

MR WELLS: Your Honour, I wonder if I just might raise a question of expedition, in part for the reasons that your Honour has already mentioned. There is an anxiety, I think on both sides, for this matter to be dealt with as soon as may be and we wonder whether this Court might give some directions to that effect.

HAYNE J: Expedition is a relative thing at the moment, Mr Wells. The February and March sittings of the Court have been fixed already and there is a deal of business confronting the Court, indeed, the year 2001 looks not to be short of its own peculiar excitements, fitting it all in. There are also, of course, some people who are sitting in gaol whose claim to expedition might be a little more pressing than your clients. We are not minded to make any direction about expedition.

If I were sitting in the commercial list again, which I am not, I would no doubt be suggesting that the parties look to actually dealing with their dispute rather than procedural and jurisdictional issues, but I am not sitting in the commercial list, so I will not say that, will I, Mr Wells?

MR WELLS: Your Honour can take it that particular line is being pursued by both parties notwithstanding.

HAYNE J: Yes. Very well, there will be orders in the terms I have indicated and the Court will adjourn again to reconstitute.

AT 3.02 PM THE MATTER WAS CONCLUDED