Miller & Ors v Chapman & Ors M31/2001 [2001] HCATrans 254 (15 June 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M31 of 2001

B e t w e e n -

LANCE STEWART MILLER,

ROBYN DIANE CONNINGHAM and

IAN SYDNEY HENKE

Plaintiffs

and

STEPHEN CHAPMAN

First Respondent

MICHAEL JOSEPH CARMODY

Second Respondent

BRUCE CARTER

Third Respondent

Application to strike out

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 JUNE 2001, AT 9.33 AM

Copyright in the High Court of Australia

MR I.S. HENKE appeared in person.

MR P.V. SLATTERY: Your Honour, I appear for the first and second defendants with my learned friend, DR G.L. EBBECK. (instructed by the Australian Government Solicitor)

MS K.L. REID: Your Honour, I appear for the third defendant, the liquidator. (instructed by Rigby Cooke)

HIS HONOUR: Yes, Mr Henke.

MR HENKE: Your Honour, I regret to inform you that Mr Fitzgibbon who we had briefed is in the fifth day of a five-day trial before the Supreme Court in Victoria. They concluded evidence yesterday afternoon at about 4.30 and Mr Fitzgibbon has to commence the submissions on that five days of evidence at 10.15 and he was not able to attend and, of course, our instructing solicitor in this matter is also the solicitor who is involved in that matter as well, your Honour.

HIS HONOUR: Yes.

MR HENKE: So my fellow plaintiffs in this matter have spoken to me and suggested that under the circumstances that I appear and ask your Honour to adjourn the matter so that we may have, in fact, the submissions answered and the matter adjourned for a proper hearing.

HIS HONOUR: Yes. Mr Henke, you seek to have the application adjourned. It would either have to go over to a day next week in Canberra after Court or it would have to go over to a date not before the second half of July. Perhaps if I hear what Mr Slattery has to say about the application. Yes, Mr Slattery.

MR SLATTERY: Thank you, your Honour. My instructions are to oppose the adjournment. In terms of prejudice, I cannot point to any prejudice and I should concede that for the moment, except some issues - - -

HIS HONOUR: Then what is the basis for the opposition, Mr Slattery? It is rather difficult, is it not, if you point to no prejudice that could not be cured by an order for costs?

MR SLATTERY: There is other prejudice, your Honour.

HIS HONOUR: Yes.

MR SLATTERY: The prejudice is in relation to the ongoing nature of the defences that have been filed by or on behalf of what is known and what was formerly known as the Institute of Taxation Research in some 400 cases that are going on in Queensland and the waiving of the proceedings in this matter in relation to the possibility of any decision in this matter providing a defence in those matters. Your Honour may remember a number of cases in which your Honour has been involved, Mr Joose and Helljay and those matters. All of the same nature of matters are being still litigated in the courts of Queensland and the other States.

What is also happening is that the proceedings in this matter are being used, in the processes in those matters, to delay those matters and that also of course delays the collection of the revenue. One can never be sure where those matters will end up in terms of collectability of the revenue.

HIS HONOUR: Forgive me if I say, Mr Slattery, there is an assumption that there is a capacity to collect the revenue as well.

MR SLATTERY: My very point, your Honour.

HIS HONOUR: Capacity to obtain judgment is one thing; capacity to get a cheque in the mail is perhaps a separate question.

MR SLATTERY: Quite so.

HIS HONOUR: But my cynicism emerges sometimes, I am afraid, Mr Slattery.

MR SLATTERY: Your Honour's cynicism - and I can under your Honour's position - should not be visited upon us in the sense that our task is to collect the revenue as quickly as possible.

HIS HONOUR: Yes, I understand that, but true it is there are, apparently, many other proceedings in which similar issues are said to arise. Would waiting a month do in all the circumstances?

MR SLATTERY: I cannot put it any higher than I have, your Honour.

HIS HONOUR: Yes.

MR SLATTERY: I think that in the circumstances - there is a second a point about all of this, of course, and that is that there are many other members of the Victorian Bar and the Australian Bar who could be here today to litigate this matter and to put the submissions to the Court. There is no unique aspect of Mr Fitzgibbon's presence which would assist the Court.

HIS HONOUR: I understand that.

MR SLATTERY: When one looks at the proceedings and looks at the material that has been filed on behalf of these plaintiffs, it is our respectful submission - I cannot go into the merits, but it is reasonably easy to see why we have taken the application we have. It is also very hard to see why other counsel could not have been briefed in the time available, bearing in mind that we are only dealing now on the pleadings and with very little peripheral material. We would, therefore, raise any question, why is it that this application has come so late, when, admittedly, these proceedings were served only last Friday.

HIS HONOUR: If I were minded to grant an adjournment, what would you say about the time to which it - and place to which it should be adjourned? As I say, I could, I think, deal with the matter in Canberra on Wednesday next after Court. Dealing with it in Brisbane in the next week is, I think, just not practical.

MR SLATTERY: Yes, your Honour.

HIS HONOUR: Then if it were to be dealt with in Melbourne, it would not be dealt with before 17 or 18 July.

MR SLATTERY: To express a preference, your Honour, would be July.

HIS HONOUR: Yes. I think there may also be difficulty about imposing on people the cost of travel to Canberra, but perhaps leave that aside. I suspect Wednesday, 18 July would be the day I would be looking to, Mr Slattery, again at 9.30 I think. Just before I turn to you, Mr Henke, Mr Slattery, I take it, do I, from what we have said that you would ask for the costs of the adjournment?

MR SLATTERY: We would ask for the costs of the adjournment, your Honour.

HIS HONOUR: Yes. What about you, Ms Reid.

MS REID: We would ask for costs of the adjournment and also that an order from the Court that our client not file a defence in this matter until this application is dealt with.

HIS HONOUR: Yes. What intermediate steps would otherwise have to be taken, or might arguably have to be taken, by your client?

MS REID: Aside from filing a defence, I do not have any other instructions.

HIS HONOUR: Yes. I notice, Ms Reid, that there is no application by your client for summary termination of the proceeding. It would seem to me, at least, that it is a possible outcome that if the present application were to succeed the judgment that would go would be a judgment in favour only of the first and second defendants, not of your client, but those are matters that the liquidator, no doubt, will take to account. Now, Mr Henke, given that you are to have an adjournment, why should the plaintiffs not pay the costs of the adjournment?

MR HENKE: The only reasons I can say, your Honour.....is that this application was not made and served on our solicitors until 4.20 last Friday afternoon, at which time Mr Waters was, in fact, in the Supreme Court here in Melbourne and by the time he returned to his office at some 6 o'clock that night at the beginning of the holiday weekend there was, in fact, of course, no opportunity to do anything further about this matter until Tuesday.

HIS HONOUR: Yes.

MR HENKE: We then received from the applicants in this case on Wednesday - on Tuesday I should say, a letter informing us that they would fax us their submissions in the matter on Wednesday night and, in fact, those submissions were delivered to Mr Waters' office at a quite late hour on Wednesday night by facsimile, which meant that we have had, in fact, less than 24 hours to, in fact, even read them through, let alone having any sort of answer.

So the process that has been undertaken by the other side has been, apparently, deliberately taken with a view to making it very difficult for us to provide an answer, but the time frame, considering that there was a holiday weekend in the middle of it, has just made it absolutely impossible.

HIS HONOUR: Yes. A summons under the Rules must be served two clear days before the return day of the summons. Even if service on Friday night is regarded as outside time and service were to be treated as having been effected on the Tuesday, the two clear days would be the Wednesday and Thursday and thus the service would be, I think on any view, within time.

MR HENKE: I accept that.

HIS HONOUR: As for the filing and provision of an outline of argument, that followed a request that I had conveyed by the Deputy Registrar to the applicants that they let me have a note of their argument. They would, I think, be entitled simply to come along making their submissions orally. Is there anything else you would wish to say in relation to the question of costs, Mr Henke?

MR HENKE: The only other question, your Honour, was the question of why we sought to have Mr Fitzgibbon involved, and that is that this matter is a continuation of a matter which commenced before the Supreme Court of South Australia. Mr Fitzgibbon has carried that matter through the entire matter, as has Mr Waters, and so consequently it is not simply a question of transferring all of the knowledge that they have gained in this issue to somebody else to have somebody else appear today. So, in fact, I did talk to some other barristers with an attempt to do so but they all expressed the view that they did not have sufficient time to acquaint themselves with the issues.

HIS HONOUR: Yes. Anything else, Mr Henke?

MR HENKE: No, sir.

HIS HONOUR: Yes, thank you.

MR SLATTERY: Your Honour, on that question of costs, could I perhaps ask that it be reserved on the question of the level of the costs payable by the plaintiffs to the date of hearing?

HIS HONOUR: I think you either ask for costs now or I reserve them generally, Mr Slattery. What is your position?

MR SLATTERY: We would ask for the costs now, your Honour. We would also ask for directions in relation to the abridgment of the time for the filing of any defences in some way as the liquidator has requested it.

HIS HONOUR: For extension, not abridgment, I assume?

MR SLATTERY: Yes.

HIS HONOUR: Is there anything more you would say about costs?

MR SLATTERY: No, thank you, your Honour.

HIS HONOUR: Yes. The orders I am minded to make are:

(1) to adjourn the further hearing of the summons to Wednesday, 18 July 2001 at 9.30 in Melbourne;

(2) direct that the time for filing a defence by any defendant be extended to 25 July 2001;

(3) order the plaintiffs to pay the costs of each of the defendants of the adjournment;

(4) to certify for counsel.

Do any of the parties or counsel seek to be heard about the form of those orders as distinct from their content?

MR SLATTERY: No, thank you, your Honour.

HIS HONOUR: Yes, there will be orders in those terms.

Before parting with the matter, may I direct the attention of both parties to a question which seems to me to arise and that is whether, in the circumstances, the principle described by Justices Deane and Gaudron in Rogers v The Queen (1994) 181 CLR 251 at 273, namely, that "decisions of the courts, unless set aside or quashed," must "be accepted as incontrovertibly correct." has application in relation to this action and whether, on the face of the proceedings as it presently constituted, the proceeding is either wholly, or in part, a proceeding directed to challenging an order now made that the company in question, the Institute of Taxation Research Pty Limited, be wound up by the Court.

Reference in this regard might also be made to Metropolitan Bank v Pooley (1885) 10 App Cas 210, particularly at 216 to 217, and to the edition of Spencer Bower and Turner, "The Doctrine of Res Judicata" to which Justices Deane and Gaudron referred in Rogers' Case, namely, the second edition of 1969, particularly at page 411. Those are matters which counsel may or may not think appropriate to address on the return of the summons on 18 July. As I say, the orders are as I have earlier indicated. I will adjourn.

AT 9.50 AM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 18 JULY 2001