Dow Jones & Company, Inc v Gutnick M3/2002 [2002] HCATrans 243 (14 May 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M3 of 2002

B e t w e e n -

DOW JONES & COMPANY, INC

Appellant

and

JOSEPH GUTNICK

Respondent

Chamber Summonses

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO MELBOURNE

ON TUESDAY, 14 MAY 2002, AT 9.32 AM

Copyright in the High Court of Australia

MR T.F. ROBERTSON, SC: I appear for Dow Jones. (instructed by Gilbert & Tobin)

MR J.L. SHER, QC: I appear with my learned friend, MR M.F. WHEELAHAN, for Mr Gutnick, if your Honour pleases. (instructed by Schetzer Brott & Appel)

MR B.W. WALKER, SC: Your Honour, I appear for applicants to intervene, commencing with Amazon.com, Inc and continuing in a list. (instructed by Blake Dawson Waldron)

HIS HONOUR: Now, I have looked at the papers in the matter. It seems to me that it may be most convenient to deal first with the question of timetable before we come to any question about length of submissions and timetable seems to be geared largely to questions of when the applicants for leave to intervene can put on their papers, do they not, Mr Sher?

MR SHER: Yes. Your Honour, Mr Walker and I have had informal discussions and we have reached an agreement, subject to the Court endorsing it, that the applicants for leave to intervene should deliver their written submissions, certainly to us by 1.00 pm next Friday, which is 17 May.

HIS HONOUR: Yes.

MR SHER: Your Honour would well understand why we would want to see those submissions before we have to do ours, which would have been due the day before. Under the practice direction, they are, in fact, due on Thursday of this week. So that we are seeking, in effect, notice from the interveners - - -

HIS HONOUR: I understand that. When would you then put on yours, if - - -

MR SHER: Our proposal was that we put our submissions in by Tuesday, your Honour.

HIS HONOUR: 4.00 pm Tuesday, 21?

MR SHER: Yes, your Honour.

HIS HONOUR: Yes.

MR SHER: Mr Walker and I have not discussed that, but I do not know if there is any resistance to that particular - - -

HIS HONOUR: I do not know that it is his position to resist. I suspect the resistance should be coming from me, should it not, Mr Sher? But you do not hear much.

MR SHER: Yes. Well, perhaps, your Honour. Could I just say this to the Court, that our desire to get these submissions early is not merely because we want to see what we have to answer before we have to answer it, but we also want to make up our minds as to what position we will adopt on this application at the moment.

HIS HONOUR: I understand that and I do not understand you to be giving anything away by making tentative agreements of this kind.

MR SHER: Yes. Well, that is the timetable that we would seek from the Court, your Honour.

HIS HONOUR: Yes. Now, Mr Walker, are you content with a timetable that would have you serve by 1.00 pm Friday, 17 May? If you can serve by then, I would be minded to say that you should file by 4.00 pm on that day and then, of course, what happens with the respondent is, I think, not so much a matter directly for your concern, is it?

MR WALKER: As to the first, your Honour, we can rearrange matters to achieve that. As to the second, with respect, that is correct, it is nothing to do with us.

HIS HONOUR: Yes. Now, Mr Robertson, these no doubt are matters of immediate interest to you, but do you have anything to say against us - - -

MR ROBERTSON: Well, so long as it is clear that the respondent's reply to our submissions is not affected. They are due to reply this Thursday.

HIS HONOUR: That would not be convenient, Mr Robertson. I want one set of reply, including a reply to the interveners. It is not going to be staged. It will be once.

MR ROBERTSON: That then places us in some difficulty because it only gives us two days, or perhaps one working day to reply. We are not in a position to do so. We have counsel coming from the United Kingdom to be in Sydney on Friday expressly for the purpose of preparing the reply to submissions that we expect to receive this Thursday. To receive them on the following Tuesday means that we not only waste that time, but we have an obligation then to reply by Thursday.

HIS HONOUR: Well, I understand that that will be too short. What is the solution? I do not want, if we can possibly avoid it, round after round of submissions. I want one set of submissions by the appellants, one set of submissions by the respondents and no doubt the interveners will make their submissions.

MR ROBERTSON: Well, if we saw a draft by Monday morning, then that would obviate our concerns.

HIS HONOUR: Drafts are difficult things. If people change them, there is all sorts of suggestions of bad faith, ill will and the like which then suddenly break out and we are distracted by them, are we not? I understand the problem that emerges. I suspect that the solution is that the interveners by 1.00 pm Friday and the respondents, I suspect, may have to bring it back to 12 noon Monday and then we stagger as best we May.

MR ROBERTSON: Then if we could have another day for our submission in reply.

HIS HONOUR: When would that take you to, Mr Robertson?

MR ROBERTSON: That would take us to the 24th.

HIS HONOUR: That is, sorry, what day?

MR ROBERTSON: That is Friday the 24th. At the moment they are due on Thursday the 23rd.

HIS HONOUR: Well, you are fixed for hearing on what day?

MR ROBERTSON: Tuesday the 28th.

HIS HONOUR: Yes. Plainly, I think, we would like to have all the papers in by close of business Friday by a time at which we can get them into the hands of the members of the Court by Friday night.

MR SHER: Could I be heard further, your Honour?

HIS HONOUR: Yes, in a moment, Mr Sher, of course. The timetable then looks to me as though it may have to be interveners 1.00 pm Friday 17; respondents sometime, I would suspect, on Monday; reply, I suspect, 12 noon the Friday 24. Now, from your point of view, Mr Robertson, would that be achievable?

MR ROBERTSON: Yes, that would be achievable.

HIS HONOUR: Yes. Now, Mr Sher.

MR SHER: Your Honour, we have given three days to reply to 34 pages of submissions that we received yesterday.

HIS HONOUR: Thirty four is the number, is it?

MR SHER: My learned friend wants effectively a week to reply to our submissions, having already produced 34 pages for our consumption. It is, in our respectful submission, your Honour, desirable that we do it once and for all. If we do it by Tuesday, they can deliver their - - -

HIS HONOUR: What time Tuesday?

MR SHER: Well, if your Honour makes it midday on Tuesday, they have three days in which to reply. They really should not have much to say, one would have thought.

HIS HONOUR: Are you really telling me though, Mr Sher, that the issues in this case have not been so defined in their passage through two courts that what is now said to you comes as a considerable surprise and shock and alters the course that your submissions will take?

MR SHER: Well, two things have happened, your Honour. We have an intervener who now wants to make a great deal of a point that was dealt with very superficially down below, namely, the choice of law issue, and that really has not been fully canvassed and certainly nothing was really fully canvassed in the Court of Appeal and there is a quite different change of emphasis and substantial argument in these 34 pages we have just received which might be said to have been a substantial elaboration on what was said down below.

HIS HONOUR: Yes.

MR SHER: If this case has the importance which the interveners would have the Court believe, then one private individual ranged against these forces, in our submission, should be given every opportunity to deal with the matter as thoroughly as his counsel thinks appropriate.

HIS HONOUR: Yes.

MR SHER: There is reference - I would not mention this but for the fact it is referred to in my learned friend Mr Walker's material - to the difficulties of counsel doing things within a certain space of time. At the present moment your Honour may be interested to learn we are heavily engaged in a pleading summons in Gutnick v Dow Jones before Justice Bongiorno seeking to strike out two-thirds of the defence - - -

MR ROBERTSON: Which we suggested should be adjourned into the High Court.

MR SHER: - - - and so we have our hands full in another direction on that issue alone.

HIS HONOUR: Yes.

MR SHER: There are a couple of other matters I would like to mention, if I may.

HIS HONOUR: About timetabling, Mr Sher?

MR SHER: Not on timetabling.

HIS HONOUR: Yes. Having regard to the competing considerations that are inevitably at issue in this matter, it seems to me that the appropriate timetable to be observed by the parties will be to this effect: first, the applicants for leave to intervene are to serve on all parties to the appeal copies of their written submissions both in support of their application for leave to intervene and those submissions that they would make if granted leave to intervene no later than 1.00 pm Friday, 17 May 2002 and file those submissions no later than 3.00 pm Friday, 17 May 2002.

The respondent may have until 12 noon on Tuesday, 21 May 2002 to file and serve his written submissions. The appellant may have until 12 noon on Friday, 24 May 2002 to file its submissions in reply, if any.

There remains then for consideration whether the appellant should have leave to file submissions exceeding more than 20 pages. Do I understand, Mr Robertson, that submissions have been served of 34 pages?

MR ROBERTSON: They have, your Honour, yes.

HIS HONOUR: It is unfortunate that in an appeal with an issue, on one view, as confined as this, submissions should extend so far but given that they are served, you may have leave to file those submissions.

MR ROBERTSON: If the Court pleases.

HIS HONOUR: It will be for those appearing for your side to defend that decision to the whole Court rather than to me. Now, Mr Sher, you said that there were other matters that needed to be dealt with.

MR SHER: Well, the first matter, your Honour, is that we would like leave to file longer than 20 pages if thought necessary.

HIS HONOUR: No, you may not have leave in gross, Mr Sher. These submissions benefit from refinement. It is a matter for regret that the appellants have been unable, apparently, to refine submissions to 20 pages. I am not minded to give you dispensation in gross.

MR SHER: The submissions, your Honour, deal in considerable detail with what are described as evidentiary matters and it is very difficult to deal with evidentiary matters in the same way as one can deal with a legal principle by reference to authority and footnotes. That is our difficulty.

HIS HONOUR: Yes. I am not saying that you may not ultimately get leave, Mr Sher, but you should approach the Registrar in the ordinary fashion, but you should do so knowing that the prima facie limit is 20.

MR SHER: We are well aware of the limit, your Honour, as were my learned friends.

HIS HONOUR: Yes.

MR SHER: Well, can I move onto the other matters that I wanted to mention, your Honour. The material we were served with included a number of affidavits which, in our submission, are clearly inadmissible.

HIS HONOUR: Well, those are matters that you will take up with the Full Court. I will not rule on the admissibility of evidence that is to be adduced before a Full Court, Mr Sher.

MR SHER: Well, that leaves us in the position, your Honour, where we do not know until the day what the fate of these affidavits will be and - - -

HIS HONOUR: Yes. The principles governing appeals to the Court are well known and discernible, I would have thought.

MR SHER: Well, they seem to have been discerned in the latest affidavits but not when the substantive affidavits were served. Your Honour will have observed in our summons that we seek, in effect, orders that the applicants address certain issues in their submissions.

HIS HONOUR: Applicants for intervention?

MR SHER: Yes.

HIS HONOUR: That will be a matter for them how they choose to do it.

MR SHER: That is why are seeking now out of the Court - it is our respectful submission that to facilitate us making a decision about our attitude to the application and to forewarn us of matters which would otherwise take up time on 28 May these matters ought to be addressed in the submissions of the applicants.

HIS HONOUR: Mr Sher, one of the reasons this case got leave was that the issue was at the time of the grant of leave perceived as being of general importance. If it is a matter of general importance, any assistance the Court can get is generally gratefully received. If the interveners do not provide assistance, who knows will come of their application? If they do provide assistance, again, it will be a matter for the whole Court to say whether they should have leave to intervene. It is, I think, to distract attention from the principal focus of debate. When we get to the appeal, let us focus on the issues that underlie the appeal.

MR SHER: That is precisely what we want to do, your Honour.

HIS HONOUR: No doubt.

MR SHER: It would, with respect, be a diversion and a waste of time if the time of the Court is taken up on 28 May with a contested application for leave to intervene.

HIS HONOUR: Just so, Mr Sher, and no doubt Mr Walker, having heard all that you have said and having seen the application you made, will deal with it as he sees fit, but I am not minded to give directions about the way the interveners mount their application for leave. Again, the principles are clear - and we seem to have lost connection to Sydney, in any event. So at the moment I am speaking to you rather than to Mr Walker as well, am I not, Mr Sher?

MR SHER: We will have to make sure he gets the transcript, your Honour. Well, it is really a matter of practical reality, your Honour, that concerns us. We are given very short notice of a matter that has been on foot since December.

HIS HONOUR: I understand that.

MR SHER: We want to get to the heart of this case and have it disposed of quickly.

HIS HONOUR: Well, let us do it. Let us not fuss about what is happening with interveners offstage left, Mr Sher.

MR SHER: Well, your Honour has heard what I have to say about that and we were hopeful that this would shorten the matter rather than lengthen it.

HIS HONOUR: I understand that.

MR SHER: If your Honour is not with me on that particular point, there is not much more I can say. If the Court pleases.

HIS HONOUR: I think we are about to try to reconnect. We might wait a moment. Now, Mr Walker, we lost the benefit of your countenance for part of that. Mr Sher was inviting me to make directions of the kind sought in his summons about the content of the submissions that you should file on behalf of the interveners. I indicated to Mr Sher that I was not minded to do that. I did, however, say to him that you would no doubt have read what was said in the summons and that you would no doubt be conscious of the fact that the Court is concerned with the underlying issues rather than being distracted by such matters as contests about whether you should have leave to intervene.

MR WALKER: Yes, your Honour. We were cut off just as your Honour said there was no doubt that I had heard, and at that point the gremlins decided to descend, but, your Honour, we accept, with respect, that that is the way we ought to proceed having been given notice by my learned friend in his summons. May I simply say this: it is, of course, not possible for us, nor would it be appropriate for us, to attempt to explain why arguments were put as they were in the courts below and we will not be able to address that.

HIS HONOUR: Yes. Then, subject to my giving directions of the kind I foreshadowed and the leave which the appellant sought, it is necessary, I think, to deal with the costs of the applications and I would be minded to simply order that the costs of the applications made by the summonses issued on 10 May be costs in the appeal and to certify for counsel. Is there anything that counsel otherwise would wish to deal with?

MR SHER: No, your Honour.

MR ROBERTSON: No.

MR WALKER: No, your Honour.HIS HONOUR: There will be directions in those terms and the order for costs of the kind I indicated. I will adjourn.

AT 9.53 AM THE MATTER WAS CONCLUDED