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High Court of Australia Transcripts |
Adelaide No A5 of 2001
B e t w e e n -
GLENMONT INVESTMENTS PTY LTD
Applicant
and
THE ROYAL AGRICULTURAL AND HORTICULTURAL SOCIETY OF SOUTH AUSTRALIA INC
First Respondent
BARRY PETER O'LOUGHLIN
Second Respondent
DAVID ALLEN PARKER
Third Respondent
TERRY PETER EDWARDS
Fourth Respondent
Application to vacate hearing date
Office of the Registry
Adelaide No A30 of 2001
B e t w e e n -
GLENMONT INVESTMENTS PTY LTD
Applicant
and
THE ROYAL AGRICULTURAL AND HORTICULTURAL SOCIETY OF SOUTH AUSTRALIA INC
First Respondent
BARRY PETER O'LOUGHLIN
Second Respondent
DAVID ALLEN PARKER
Third Respondent
TERRY PETER EDWARDS
Fourth Respondent
JONATHON FOOTE
Fifth Respondent
Application for expedition
GAUDRON J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT ADELAIDE ON TUESDAY, 14 AUGUST 2001 AT 9.12 AM
Copyright in the High Court of Australia
MR D.E. CURTAIN, QC: May it please your Honour, I appear with my learned friend, MR M.I. BELL, on behalf of the first respondent, the Royal Agricultural and Horticultural Society of South Australia Incorporated. (instructed by Lawson Smith)
MR R.M. MARRONE: If it please your Honour, I appear for the second respondent, Barry Peter O'Loughlin. (instructed by Marrone & Co)
HER HONOUR: There is no appearance for the other respondents, I take it?
MR CURTAIN: Your Honour, Mr Foote has not appeared for some time and he has not been represented.
MR D. JERVIS: Your Honour, I have been appearing for Parker and Edwards, but we have indicated we do not want to take part in these proceedings in writing, so that is why I am not at the Bar table, but I will appear if you wish me to do so.
HER HONOUR: No, no, just so long as I - - -
MR JERVIS: But we have not appealed and we have no interest in these proceedings and will be bound by any orders. We are interested in the outcome but we do not want to make any submissions.
HER HONOUR: Thank you. Yes, Mr Besanko, perhaps you had better explain the somewhat unusual flurry of activity to me.
MR BESANKO: Yes, your Honour. Your Honour, there are two applications before your Honour this morning. One is an application to adjourn the special leave application by Glenmont Investments, which is listed before the Court this Friday.
That application, your Honour, is supported by an affidavit of Sonia Bolzon sworn on 3 August this year. May I just indicate briefly the background which is referred to in that affidavit. The Full Court heard an appeal from a decision of his Honour Justice Millhouse. Reasons were delivered in December of last year and orders were made in March of this year.
The respondent to the appeal, Glenmont Investments Pty Limited, had been successful against the Royal Agricultural and Horticultural Society in the court below, but that was overturned in the appeal court and that decision of the appeal court is the subject, your Honour, of the application for special leave this Friday. Glenmont Investments made an application on 26 July for an order that a new and differently constituted Full Court hear an application by Glenmont to recall and reopen the orders of the Full Court.
HER HONOUR: Now, what is the basis of that? I mean, just in general terms, that seems to be a very unusual procedure to have adopted.
MR BESANKO: Your Honour, the basis of the application is that there were various factual errors made by the Full Court in its reasons. Those errors are set out in the affidavit of Ms Bolzon of 26 July 2001. That affidavit is part of the exhibit to this application. In brief it said that the Full Court misinterpreted or misunderstood various factual matters. Could I ask your Honour to go to paragraph 6 of the affidavit. There was an issue, your Honour, about the time that was taken to call the fire brigade, and the trial judge had made a finding of credit in relation to one of the show employees. The Full Court overturned the conclusions of the trial judge on that issue and it is said by Glenmont that the Full Court failed to have regard to certain evidence that had been given on that topic.
HER HONOUR: Is this relevant to the duty of care?
MR BESANKO: This particular one, your Honour, is relevant to breach. There are other - - -
HER HONOUR: Is that not putting the cart before the horse a little bit?
MR BESANKO: That particular one is, your Honour, because it only arises, of course, if there is a duty of care and the Full Court found that there was no duty of care, but there are other errors alleged in the affidavit which may well be relevant to the duty of care.
HER HONOUR: What? I mean, is the question not whether there is a duty of care essentially a question of law? Is there something that goes to foreseeability, for example?
MR BESANKO: We say, your Honour, that there was a factual matter that went to the issue of vulnerability. That matter is referred to in paragraph 8 and, in brief, there was an information and conditions booklet - it is referred to in paragraph 8.4.1 - which contained certain statements and requirements about fire precautions. The Full Court found that that was part of the contract between the parties. There was evidence that the principal for Glenmont Investments saw that document and pointed out the fire points to one of his employees. There were certain findings made in relation to that that Glenmont Investments submits were incorrect. But that issue, the question of the - - -
HER HONOUR: What really does that go to? Does it go to contract, duty of care or what?
MR BESANKO: We say that primarily it goes to the question of duty of care.
HER HONOUR: How?
MR BESANKO: If one of the parties to the contract was given a document which contained certain statements about fire precautions and what they needed to do, that might have created an expectation in the mind of that party as to the fire precautions that would be provided and, hence, be relevant to the question of vulnerability.
HER HONOUR: Perhaps I do not understand the case very well but, for my part, I do not understand the way you put that. These were contractual terms. Is it alleged that they constitute a negligent misstatement of fact or something of that nature?
MR BESANKO: No, your Honour, that was not alleged.
HER HONOUR: How do you say they go to the question of duty of care again?
MR BESANKO: What the show did, we say, your Honour, in the document was to say certain things that would have conveyed to the mind of a reasonable reader that the - - -
HER HONOUR: We are not talking negligent misstatement?
MR BESANKO: No, I understand that, your Honour.
HER HONOUR: No, all right.
MR BESANKO: But it would convey to the mind of a reasonable reader that the show had adequate fire precautions and measures in place and would provide those.
HER HONOUR: Is that not negligent misstatement which is not pleaded?
MR BESANKO: It may be, your Honour, but we say that it is also a relevant factor in terms of whether this applicant was particularly vulnerable and his state of mind - - -
HER HONOUR: What is it that you say the Full Court got wrong in that regard?
MR BESANKO: Well, it made various findings, your Honour, about the issue of credit of Mr Limb, who was the principal of the applicant, and found that the findings of credit should be overturned. But it made findings about whether he pointed out the fire hydrant to one of his employees and, by implication, as to whether he was relying on the statements that had been made in the information and conditions booklet.
HER HONOUR: But were not suing on a negligent misstatement of fact?
MR BESANKO: No, your Honour, no.
HER HONOUR: Very well. For my part at the moment, I just do not see how these factual issues bear upon the legal issues that are raised by the special leave application.
MR BESANKO: Your Honour, the other issue is the question of a term of the contract that water be provided for fire protection. What the Full Court found was that, in effect, that term meant that as long as there were hydrants and hoses there, that term was complied with. The submission we made in the court below was that that term meant that actually water would be provided in the event of a fire, that action would be taken by the show, and some of these matters go to that issue.
HER HONOUR: But I do not see how credibility bears on the question of an implied term.
MR BESANKO: No, your Honour, but it is alleged in paragraph 8 that the Full Court did make an error in the way it construed the finding that had been made by the trial judge. But, your Honour, in any event, the difficulty that we would face in our special leave application is that it may well be said on the other side - in fact, it will be said on the other side - that even if you win on the legal issue, you will lose on the facts and that this Court ought not to get involved in an issue on the facts. Now, what we are seeking to do is if the Full Court have made an error, errors of fact that go at the very least to the question of breach, we would be seeking - - -
HER HONOUR: Breach of what?
MR BESANKO: Breach of a duty of care.
HER HONOUR: We are talking about the common law duty of care. We are not talking breach of contract or breach of implied term. I just need to know what you are talking about.
MR BESANKO: Your Honour, we are talking about a breach of the common law duty of care. We do allege contract, but at the moment I am making the submission in relation to the duty of care, a common law duty of care. Even if these matters only went to the question of breach - and we have made our submissions as to why they go further than that - we would otherwise face the argument that this Court ought not to grant leave because even if there is an important point going to duty, we lost on the question of breach and it is not an appropriate vehicle.
So, your Honour, that, just very briefly, is the factual background to our application to reopen. I will not take your Honour through the affidavit in any more detail than that. There is a decision of our Full Court in McAdam v Robertson which your Honour will see referred to in paragraph 10. In that decision the Chief Justice, albeit in a case where the orders had not been sealed, decided that if a Full Court made errors of fact - and in that case the errors related to a motor vehicle accident and the way in which vehicles were travelling and so on and so forth, but his Honour decided in that case that one could go back to the Full Court and ask them to reconsider the matter.
He did say that it was appropriate to go back to the Full Court that had decided the matter but he did not exclude the possibility of going back to a differently constituted Full Court. Our argument is that the Full Court in this matter, having made various findings that are relevant to credit, the credit of Mr Anderson, the show employee, and the credit of Mr Limb, it is appropriate for any application to go back - - -
HER HONOUR: You are talking about the second application before me now, are you?
MR BESANKO: I was really trying to give your Honour just a history. In a sense I am, your Honour, yes.
HER HONOUR: Yes.
MR BESANKO: But our argument has been that it is appropriate for it to go back to a differently constituted Full Court. By way of background, the Chief Justice decided on 1 August that the matter ought go back to the same Full Court and he decided on 8 or 9 August that he would not adjourn the Full Court hearing which was listed for yesterday; and our two applications before your Honour this morning, the first one is to adjourn the application for special leave on Friday and the second is to seek special leave in relation to his Honour's refusal.
HER HONOUR: I thought it was to seek expedition of the special leave application, the second one.
MR BESANKO: Yes, I think your Honour is right. Yes, that is with a view to that application being heard as soon as possible and, if granted, an appropriate order being made in relation to the existing Full Court. We have filed this morning or at least had delivered to your Honour's associate a further affidavit of Ms Bolzon.
HER HONOUR: Attaching the transcript of yesterday's proceedings, when very helpfully your Full Court adjourned to see what I would do - very helpful. I suppose one course I might take is to do exactly the same.
MR BESANKO: Your Honour might. Could I just refer your Honour to two parts of the transcript. First of all on page 2, Mr Holland mentioned to the existing Full Court what was occurring and he indicates there that there were essentially three difficulties with the application for leave to appeal from Chief Justice Doyle's order of 1 August. First, Justice Wicks sat on the court and there had been an earlier issue as to whether his Honour was disqualified. Just by way of background, that issue came up on the appeal proper and Glenmont Investments indicated that they had an objection and his Honour - - -
HER HONOUR: That they had an objection?
MR BESANKO: - - - they had an objection and his Honour did not sit. The other procedural matter, your Honour - - -
HER HONOUR: I still do not see how that works out. Mr Justice Wicks was a member of what Full Court?
MR BESANKO: His Honour was a member of the Full Court which yesterday heard the application for leave to appeal from the Chief Justice's order, not referring it to a different Full Court.
HER HONOUR: Yes, and what happened to that? At the end of the day, what happened to the application for leave to appeal?
MR BESANKO: It was - - -
HER HONOUR: Adjourned.
MR BESANKO: Yes. Effectively, it was refused.
HER HONOUR: What do you mean, "effectively refused"?
MR BESANKO: If your Honour goes to page 4 of the transcript, Mr Anderson, who had been before that Full Court, had raised with that Full Court certain difficulties with the order - - -
HER HONOUR: Which order?
MR BESANKO: The order of that Full Court refusing leave to appeal. What happened was that that Full Court, your Honour, came in and said, "We have considered the application for leave. We refuse it". Mr Anderson said, "Well, there are a number of difficulties with that, one, Justice Wicks, we say, ought not to have sat; two, we were not given the opportunity to make written submissions". The court then indicated, as your Honour will see at about line 28 - - -
HER HONOUR: Of page 4?
MR BESANKO: - - - on page 4, that these matters were raised with that court. They were reserved on it.
HER HONOUR: Reserved on what?
MR BESANKO: On whether they ought to reconsider the matter, as I understand it.
HER HONOUR: Now, listen, you tell me exactly what happened. I have come into this matter, I was given this document five minutes before I came into Court. I have never in my legal career encountered such a procedure as is apparently now going on. Tell me exactly what happened.
MR BESANKO: I am told, your Honour, that they reserved on the question of whether they would, in effect, rehear the application for leave to appeal.
HER HONOUR: Where is that? Where do I find that in this transcript?
MR BESANKO: Well, the only place that it is referred to, your Honour, is on page 4 at about line 31, to consider whether we ought to be heard.
HER HONOUR: Page 4?
MR BESANKO: In the comments made by Mr Anderson - - -
HER HONOUR: Mr Anderson being?
MR BESANKO: Mr Anderson, your Honour, was senior counsel for Glenmont Investments.
HER HONOUR: Yesterday?
MR BESANKO: Yesterday.
HER HONOUR: Where is the order that you would seek special leave to appeal against?
MR BESANKO: The order I do not think has been drawn up. It is embodied in a - - -
HER HONOUR: Orders are not embodied. Orders are orders.
MR BESANKO: It is referred to, your Honour, in Exhibit SB-2 to the affidavit of Sonia Bolzon sworn on 9 August 2001.
HER HONOUR: SB-2, this is the judgment of Chief Justice Doyle.
MR BESANKO: Yes, your Honour.
HER HONOUR: He dismisses the application for him to adjourn?
MR BESANKO: Yes, your Honour.
HER HONOUR: Right. Now, you sought leave to appeal against that order?
MR BESANKO: Yes, we did.
HER HONOUR: Where is the order dealing with leave to appeal? It is the order refusing leave to appeal that founds your application for an expedited hearing of a special leave application, is it not?
MR BESANKO: Yes, but, your Honour, there are two orders. There is the order refusing the adjournment - - -
HER HONOUR: That is Chief Justice Doyle's order.
MR BESANKO: Chief Justice Doyle, but your Honour - - -
HER HONOUR: Is that the subject of the special leave application?
MR BESANKO: Yes, it is, and Chief Justice Doyle said in the course of the arguments that he was sitting as the Full Court under section 48 of our Supreme Court Act.
HER HONOUR: Did you seek to move the Full Court of the South Australian Supreme Court in some way in respect of that order refusing an adjournment?
MR BESANKO: No, we did not, your Honour. We applied for leave to appeal, but I think that may well have been leave to appeal to the Full Court. That may well have been wrong. We say, your Honour, that on the application to adjourn, his Honour was sitting as the Full Court.
HER HONOUR: You may say that, but the documents provided to me by no means indicate that the matter of the adjournment is finalised in the Full Court. The documents suggest to me that there is still toing-and-froing, backwards and forwardsing, about that adjournment in the Full Court.
MR BESANKO: Well, the Full Court yesterday adjourned the hearing over until today.
HER HONOUR: Adjourned what hearing?
MR BESANKO: Adjourned our application for the matter to be reopened. Your Honour, could I say, the matter that came before the different Full Court yesterday was an application for leave to appeal from the refusal to refer it to a different Full Court, and we are seeking the special leave application to be adjourned - - -
HER HONOUR: I know what you are speaking about, the special leave application to be adjourned. Let us look first at your application for expedition. Are not the questions whether Chief Justice Doyle should or should not have granted an adjournment, which is the subject of the special leave application, and the question whether or not there should be some reopening of the earlier decision tied up? Are they not really inseverable?
MR BESANKO: We submit, your Honour, that if his Honour should have referred the matter to a different Full Court, in effect, other proceedings should pause while that issue is determined.
HER HONOUR: I understand what you are talking about, but that is in relation to your application for the adjournment, is it not?
MR BESANKO: Yes.
HER HONOUR: I will repeat myself. Let us look first at your application for expedition, which is an application for expedition - and let me say, again, I have never encountered such a procedural mishmash in my life - your application for adjournment which was refused by the Chief Justice and is the subject of the special leave application and the application for expedition is, is it not, related to the matter that is presently before the Full Court?
MR BESANKO: Yes, it is.
HER HONOUR: If, for example, the Full Court says they will not reopen, then the substance of your complaint is not simply the refusal of an adjournment, is it?
MR BESANKO: No.
HER HONOUR: Why then do you think it would be appropriate to expedite a special leave application which looks at one slice only of what is going on?
MR BESANKO: Our concern, your Honour, is that the matter not proceed before the existing Full Court.
HER HONOUR: I can understand that, in a sense.
MR BESANKO: But there are two difficulties with that, your Honour, one is simply the practical difficulty and the costs involved and so on in having - - -
HER HONOUR: It seems to me you brought the practical difficulties and the costs on your own head. Be that as it may, that seems to me what you have done. You have had since December when the reasons were issued to move the Full Court one way or another. When were the orders made?
MR BESANKO: In March, your Honour, I think.
HER HONOUR: On 2 April. Now had you moved the court before 2 April, then you were in one line of country. Having waited until the orders issued, you are in entirely different territory in terms of your application before the Full Court, are you not?
MR BESANKO: I think that is right, your Honour, yes.
HER HONOUR: Yes, which raises far bigger legal issues, I should have thought, than the question whether or not an adjournment should have been granted, does it not?
MR BESANKO: Your Honour, could I give a qualified "probably". We have a rule of court and there are a line of cases suggesting that applies equally whether the orders have been sealed or not sealed.
HER HONOUR: Very well, all right. I understand that. Is there anything further you wish to say about the application for expedition? We will come back to the application for an adjournment, but the application for expedition?
MR BESANKO: No, your Honour.
HER HONOUR: Now, does anybody at the other side of the Bar table wish to say anything, either in support or in opposition to the application for expedition?
MR CURTAIN: We oppose the application, your Honour.
HER HONOUR: On what basis?
MR CURTAIN: It is our respectful submission that the points that your Honour raised with my learned friend in relation to the steps that the applicant failed to take over a period of months from - - -
HER HONOUR: That is neither here nor there, really, is it? That bears more on the adjournment application.
MR CURTAIN: That is true, your Honour.
HER HONOUR: The real question is, is any sensible issue capable of being resolved expeditiously?
MR CURTAIN: Your Honour, the question of expedition is linked with the question of an application for an adjournment. If there was to be expedition and the matter was to be heard on Friday, then we would have no exception to the application for expedition. But if the application for expedition is successful and that has the effect of removing the application from Friday's list - and I think now Thursday's list, as I am told - then we would say that carries with it an unfair prejudice to our client.
HER HONOUR: Anything else from that end of the Bar table? Mr Besanko, I would not be prepared to grant your application for expedition.
MR BESANKO: If your Honour pleases.
HER HONOUR: I indicate simply it is not at all clear what further steps are or will be taken in the Full Court. It does not seem to be appropriate to expedite one isolated issue and, accordingly, that application is refused and is refused with costs.
Now we will come to your adjournment.
MR BESANKO: In our submission, your Honour, it would be appropriate to adjourn the special leave application listed for this week, pending the consideration of the matter by the Full Court of our application for leave to appeal from the decision not to refer the matter to a different Full Court. We submit that until that process is exhausted, it would be inappropriate, if I can put it that way, for the special leave application to proceed. It may be the Full Court will reconsider the matter and grant a further hearing of the matter and different findings of fact and different conclusions expressed by the Full Court which will bear upon the special leave application; and we would say, your Honour, that in the absence of any demonstrable prejudice by the defendants, it is appropriate to adjourn the special leave application. I do not know, your Honour, to what date that application could be listed, but if it could be listed not too far into the distant future, then we would submit there would be no prejudice to the respondents in that course being adopted. If your Honour pleases.
HER HONOUR: The one issue you have not addressed is how does it affect Mr O'Loughlin because his application is listed and do you not, to be consistent, really have to ask for his to be adjourned too? Realistically and as a practical matter, the matters go ahead together, do they not?
MR BESANKO: It would be more convenient for the matters - - -
HER HONOUR: No, do not talk about "more convenient". We are talking about the same decision, are we not, somewhat different orders but the same decision?
MR BESANKO: Yes.
HER HONOUR: Yes, and they are related matters, are they not, intimately related?
MR BESANKO: Yes, your Honour, yes, I think that is probably - - -
HER HONOUR: Now, what do you say about Mr O'Loughlin's application then? You say it can go forward and yours can stay in the wings?
HER HONOUR: Yes, thank you. Mr Curtain?
MR CURTAIN: If your Honour pleases. We resist the application for an adjournment. The judgment made by the Chief Justice refusing to constitute a new Full Court to hear the application to vacate the order of the Full Court and rehear the appeal was accompanied on refusal by an oral application by senior counsel for Glenmont to refer the matter to the old Full Court, that is, the Full Court that originally heard the appeal. That was specially convened yesterday to hear the application and, as your Honour knows, stood down or adjourned until this application had been made to your Honour. That Full Court is ready, willing and able to hear the application upon notification of the outcome of this application, and we believe that will be done today and perhaps even this morning. There is no need, therefore, to adjourn the special leave application on Friday. We expect that the Full Court will deal with the application before it and make a decision, perhaps extempore, but certainly by Friday.
HER HONOUR: Now, let me ask you a question - again, I must say I am extremely puzzled by the course this has taken. Let us assume that the Full Court were to accede to a rehearing of the appeal. Then, they would be setting aside their order.
MR CURTAIN: They would be setting aside their orders.
HER HONOUR: There would nothing for special leave to be granted on.
MR CURTAIN: That is right, and if they did that, we would not resist an application to set application aside.
HER HONOUR: On the other hand, if they decide not to reopen, then the judgment is intact and can be the subject of a special leave application on questions of law.
MR CURTAIN: And is, yes.
HER HONOUR: Yes, I understand that.
MR CURTAIN: I have nothing further to say. There - - -
HER HONOUR: Yes. Mr Marrone?
MR MARRONE: If your Honour pleases, Mr O'Loughlin does wish his application for special leave to proceed. Senior Counsel, Mr Brian Hayes, has been engaged to represent him and my presence this morning was on the basis that, as I had understood, for the solicitors acting for Glenmont, that their application would not in any way impinge upon Mr O'Loughlin's application. We do want that application to proceed. Judgment has been handed down for some time.
HER HONOUR: You may find yourself in a difficulty, Mr Marrone, if it should turn out that the Full Court decides to set aside its decision and order and rehear the appeal.
MR MARRONE: Yes, your Honour.
HER HONOUR: You realise that, do you not? It seems unlikely, does it not, given the contribution issues?
MR MARRONE: In concur with your Honour on the contribution issues, should they - - -
HER HONOUR: It seems unlikely - it may be possible, but I have not thought it through - that the Full Court could set aside some only of its orders and rehear the appeal, does it not?
MR MARRONE: I think your Honour is right, with great respect, in - - -
HER HONOUR: I am not familiar with this case in detail but - - -
MR MARRONE: - - - should the Full Court grant Glenmont's application and have a, let us say, reopening of the various issues that they put before their Honours and again assuming they alter findings and they hold in favour of Glenmont, then, as I said, the only effect it may have would be on the issue of contribution, but not in relation to the first major issue between Glenmont and Mr O'Loughlin, which is on the issue of liability arising out of the implied term which the Full Court had implied into the contractual relationship. That would still stand, so - - -
HER HONOUR: Yes, but there may not be an order.
MR MARRONE: Yes.
HER HONOUR: The problem is one appeals against orders.
MR MARRONE: Yes, your Honour. There is that risk. I cannot put - - -
HER HONOUR: I am just indicating to you that you may not be justified in taking an entirely sanguine approach that your client's position is entirely separate.
MR MARRONE: I cannot put any more.
HER HONOUR: No.
MR MARRONE: I understand what your Honour is saying, I cannot put any more before your Honour to assist.
HER HONOUR: Yes, thank you. Before I proceed, although Mr Jervis has appeared, I should indicate that I have been given a certificate by the Deputy Registrar certifying that she has been informed by Mr Thomas that the third and fourth respondents will not be appearing at the hearing of the Chamber summons.
MR JERVIS: Yes, thank you, your Honour.
HER HONOUR: Mr Besanko anything in reply?
MR BESANKO: No, your Honour.
HER HONOUR: It seems to me that on the basis that if the Full Court of the Supreme Court of South Australia were to set aside the orders, there will be nothing upon which an application can proceed on Thursday or Friday, and on the basis that if it does not, there is no reason why the application should not proceed, that the application for adjournment should be refused. It will be refused with costs in the ordinary course. The Court will now adjourn.
AT 9.57 AM THE MATTER WAS CONCLUDED
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