Residual Assco Group Ltd v Spalvins & Ors A48/1999 [2000] HCATrans 9 (3 February 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A48 of 1999

B e t w e e n -

RESIDUAL ASSCO GROUP LIMITED

Plaintiff

and

JANIS GUNARS SPALVINS

First Defendant

MICHAEL JAMES KENT

Second Defendant

NEIL LESLIE BANFORD

Third Defendant

KENNETH WILLIAM RUSSELL

Fourth Defendant

MICHAEL STEVENSON GREGG

Fifth Defendant

DELOITTE HASKINS & SELLS

Sixth Defendant

DELOITTE ROSS THOMATSU

Seventh Defendant

Ex parte -

THE ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 3 FEBRUARY 2000, AT 9.30 AM

Copyright in the High Court of Australia

___________________

MR T.A. GRAY, QC: May it please the Court, I appear with my friend, MR M.F. BLUE, for the plaintiff. (instructed by the Australian Securities & Investments Commission)

HIS HONOUR: Now there is an appearance in Adelaide is there, for the Attorney.

MR K.L. KELLY: I appear for the Attorney-General for the State of South Australia in relation to the application for removal. (instructed by the Crown Solicitor for the State of South Australia)

HIS HONOUR: Yes, you are the moving party on the application for removal?

MR KELLY: That is so, your Honour.

HIS HONOUR: Yes.

MR D.F. JACKSON, QC: If your Honour pleases, I appear with my learned friend, MR S.J. WHITE, for the first defendant in the matter. (instructed by Thomson Playford)

MR A.J. BESANKO, QC: If your Honour pleases, I appear for the second and third defendants. (instructed by Finlaysons)

MR J.P. DeRUVO: If it please the Court, I appear for the fourth and fifth respondents. (instructed by Phillips Fox)

MR G.K. FEARY: Your Honour, I appear for the sixth and seventh respondents. (instructed by Mallesons Stephen Jaques)

HIS HONOUR: Right. Now, am I right in thinking that the fourth, fifth, sixth and seventh defendants would not be taking an active part in the matter once it was removed into this Court.

MR DeRUVO: Yes, sir.

MR FEARY: Yes, that is so.

HIS HONOUR: I will come back to that. Gentlemen, on the Attorney's application which is made as of right, I would act in accordance with the draft order with a modification. I think this question is probably best directed to you, Mr Gray, in the first instance. The section of the Act that appears immediately in focus, as it were, section 11, is it not?

MR GRAY: Yes.

HIS HONOUR: But relief is sought in relation to other provisions 6, 7, 8.

MR GRAY: And 10, your Honour.

HIS HONOUR: And 10, yes. What is the footing for that is an immediate question that arises?

MR GRAY: Your Honour, these in fact are questions being posed by the respondents. Section 11 is a section that deals with a procedure that allows one to record the proceedings in the South Australian Supreme Court and in a sense is a machinery type provision, whereas section 6 and the other sections that follow deal with declarations as to rights and liabilities. I think it would be fair to say that ultimately the major focus of the argument may address sections 6 to 10 as where the major issues might arise. But they are in a sense hand in hand.

HIS HONOUR: Yes. There have been steps taken in the Federal Court obviously, and I suppose 6 and 10 are protective in a way of what has happened there.

MR GRAY: Yes. There is a schedule to the agreed statement of facts that sets out the variety of orders.

HIS HONOUR: Yes, that is right.

MR GRAY: If it was of assistance to the Court in dealing with it, copies of those orders could be extracted and supplied.

HIS HONOUR: I am prepared to act on what you say. Do you agree with that, Mr Jackson?

MR JACKSON: Yes, your Honour. May I just say two things. One is that so far as I am concerned personally, I have quite recently become involved in this matter. We have no difficulty, I understand - and I believe this to be correct - with the form of the order that is proposed in terms of the questions and so on. It did seem to me, however - and this is covered by the last order suggested by my learned friend there be liberty to apply for further directions - that it may be that some issues of validity are a little more confined than perhaps the question that might presently be expressed and it may be desirable on a further directions hearing perhaps to raise that point if it is thought that it might possibly arise. I do not think that will affect what your Honour is doing today.

HIS HONOUR: No.

MR JACKSON: The second thing is, so far as the proposal to remove is concerned, just one aspect of the order that is proposed that we would perhaps question - - -

HIS HONOUR: Yes, well, perhaps before you mention that, I had a worry about it, too. Perhaps I will tell you, first, what I was proposing to do. I was proposing to make an order, 1. Pursuant to section 40(1) of the Judiciary Act 1999 there be removed into this Court that part of the cause in proceedings pending in the Supreme Court of South Australia in Action No. 1161 of 1999 as raises the question whether the proceedings be struck out for want of jurisdiction by reason of the invalidity of the whole or any part of the Federal Courts (State Jurisdiction) Act (SA) and rule 123A.05 of the Rules of the Supreme Court of South Australia.

MR GRAY: We would support that rewording, your Honour.

MR JACKSON: Your Honour, that takes care of the matter that I would have raised.

HIS HONOUR: Yes. That gives sufficient room to move with the case stated, yes. Is it agreed that there be no order as to costs on the removal application?

MR GRAY: Your Honour, as against the Attorney - - -

HIS HONOUR: It is his application.

MR GRAY: It is his application. I understand that to be agreed. As between the other parties, that they should be costs in the cause.

HIS HONOUR: Yes. How should proposed order 2 then read? It says at the moment there be no order as to costs in respect of the removal application.

MR GRAY: Your Honour, we have actually delivered some further minutes of order this morning. Paragraphs 6 and 7 dealt with the costs.

HIS HONOUR: What does it say?

MR GRAY: Paragraph 6, your Honour:

The costs of the Plaintiff and the First to Third Defendants of the applications heard this day and of this hearing be costs in the cause.

HIS HONOUR: And, otherwise, there be no order as to costs.

MR GRAY: And, paragraph 7:

There be no order as to costs of or against the Attorney-General for the State of South Australia in respect of his removal application.

HIS HONOUR: Yes.

MR GRAY: Could I pass your Honour a further copy of the minutes? They may not have - - -

HIS HONOUR: No, I have got them, thank you, Mr Gray. I have got an embarrassment of - - -

MR GRAY: The other matter, your Honour, was the timetable for outlines.

HIS HONOUR: Yes, I will come back to that.

MR GRAY: Thank you, your Honour.

HIS HONOUR: I just want to get it here, first. Yes, Mr Jackson.

MR JACKSON: Your Honour, I am sorry to rise again. In relation to the question of costs, we would not contest the proposition that the costs of the hearing today be costs in the cause - - -

HIS HONOUR: Costs of the cause in this Court, I think.

MR JACKSON: Yes, your Honour. A question does arise, I suppose, in relation to the extent of an order being made now about costs of the future hearing of the matter in this Court.

HIS HONOUR: I would not make any order about that.

MR JACKSON: It is just that the way in which the order is expressed at the moment and of this hearing is perhaps capable of dealing with the situation completely in the future because, your Honour, it is possible that the conduct of an intervener might extend the matter so that - - -

HIS HONOUR: Yes, it is not unknown. Mr Kelly, and gentlemen, I will read the orders I propose to make on the removal application:

(1) Pursuant to section 40(1) of the Judiciary Act 1903 there be removed into this Court that part of the cause in proceedings pending in the Supreme Court of South Australia in action No 1161 of 1999 which raises the question whether the proceedings should be struck out for want of jurisdiction by reason of the invalidity of the whole or part of the Federal Courts (State Jurisdiction) Act 1999 South Australia and of rule 123A.05 of the Rules of the South Australian Supreme Court.

(2) Costs of the plaintiff and of the first and third defendants of this application for removal be costs of the cause in this Court, otherwise there be no order as to costs in respect of this application.

Is that acceptable to the Attorney, Mr Kelly?

MR KELLY: That is acceptable to the Attorney-General for the State of South Australia.

HIS HONOUR: Thank you. Now, should I make an order excusing the other defendants from further attendance in this Court or just leave that for some communication of the Registrar?

MR DE RUVO: Your Honour, I would prefer if that could be left to the Registrar.

HIS HONOUR: All right. That deals with the removal application. Then there is the matter being here, there is a summons for a stated case, and I have a draft headed ALM-2 which is exhibited to one of the affidavits.

MR GRAY: Yes, your Honour.

HIS HONOUR: Now, I suppose you have the carriage of it now, Mr Gray?

MR GRAY: Yes, your Honour.

HIS HONOUR: The Attorney, of course, preserves his right of intervention. He is no longer a party, so he should be removed from the list of parties on page 1.

MR GRAY: Yes, your Honour.

HIS HONOUR: And the questions from the draft case stated, I think, should not be argumentative, so question 4 would simply read: "Are section 11 of the Act and rule 123A.05 of the Rules of the Supreme Court of South Australia invalid?"

MR GRAY: Yes.

HIS HONOUR: And (2) would read "Are any one or more and, if so, which of sections 6, 7, 8 and 10 of the Act invalid?" Then (3), I would suggest, should say, "If any of sections 6, 7, 8, 10 or 11 of the Act be invalid, is, as a consequence thereof, any other provision, and if so, which, invalid?"

MR GRAY: Yes, your Honour, that would be acceptable.

HIS HONOUR: That leaves it wide enough, I think.

MR GRAY: Yes, your Honour, we would respectfully seek to endorse that.

HIS HONOUR: So I will make an order for a case stated in terms of ALM-2 revised as indicated and I would also reserve on the summons for directions, liberty to apply to revise the case stated as need be if Mr Jackson so minded at some future date. I can indicate to the parties that the matter is likely to be heard in May, but I do not have a date, of course, at the moment. The March and April sittings are full.

MR GRAY: Could I just mention two matters to your Honour.

HIS HONOUR: Yes.

MR GRAY: The first is whether your Honour think it appropriate to give a direction in regard to the filing of serving of outlines and, in particular, your Honour, although we are the moving party, it is really the first to third defendants who should be putting forward their submission first.

HIS HONOUR: Yes, they are attacking, I suppose.

MR GRAY: Yes.

HIS HONOUR: I think that is right.

MR JACKSON: Your Honour, I accept that, so far as the first defendant is concerned. We think it would be desirable, your Honour, for there to be some order as to the time for written submissions a little more lavish in terms of time before the hearing than is otherwise provided for and could I, in that regard, suggest that it perhaps be noted at this point that perhaps a period of say four weeks before the date fixed for hearing or perhaps the commencement of the sittings, which the matter is fixed for hearing, be the time for the submissions on our part and on the part of the second and third respondents and perhaps a period of two weeks before the hearing for the submissions on behalf of the other sides and any interveners.

HIS HONOUR: Yes.

MR GRAY: Yes, that would be acceptable, your Honour.

HIS HONOUR: Yes, well can we work on the footing that the terminal date, as it were, is the first day of the May sittings, which is Tuesday, the 9th; I am not sure that that is what it will be, but let us assume that. So would you just say again what you were saying, Mr Jackson.

MR JACKSON: Yes, your Honour. I was suggesting that the submissions on behalf of the first, second and third defendants be filed and served 28 days before the date for the first day of that sittings and the submissions on behalf of the other parties, including interveners, be filed and served 14 days later.

HIS HONOUR: Does that seem suitable, Mr Gray?

MR GRAY: Yes, it is, your Honour. On our calculations the first of the dates would be 11 April and the second of the dates, allowing for Anzac Day, would be 26 April.

HIS HONOUR: Yes, it is best to make it specific, I think.

MR GRAY: Yes.

HIS HONOUR: Very well, gentlemen.

On the summons I will order, (1) that the questions of law arising in the cause as removed be stated as a special case for consideration of the Full Court, in terms of the draft document ALM-2, revised as indicated in the course of the hearing this morning; (2) that the written submissions for the first to third defendants be filed and served on or before 11 April 2000; and the written submissions for other parties (including any interveners) be filed and served on or before 26 April 2000 and (3) that the summons stand over with liberty to restore on seven days notice.

MR JACKSON: I am sorry, I just did not catch the last thing you said.

HIS HONOUR: I will stand over the summons with liberty to restore on seven days notice.

MR JACKSON: Yes, your Honour.

HIS HONOUR: Costs this morning of the summons will be costs of the cause in this Court.

MR GRAY: Would your Honour certify for counsel?

HIS HONOUR: Yes. I will certify for counsel both in the removal application and in the summons for directions.

Is there anything else, gentlemen?

MR GRAY: No, sir.

HIS HONOUR: Yes, thank you, gentlemen. I will now adjourn.

AT 9.48 AM THE MATTER WAS CONCLUDED