Sutton & Ors v Alley & Ors M28/2000 [2002] HCATrans 43 (15 February 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M28 of 2000

B e t w e e n -

JOHN DAVID SUTTON

First Applicant

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Second Applicant

RONALD GEORGE OWENS (as representing the members of the BLF as at 31 March 1994 other than those otherwise represented herein)

Third Applicants

JOHN CUMMINS, JOHN SETKA and ROBERT GREGORY WILSON (as Trustees of the BLF)

Fourth Applicants

and

STEPHEN GEORGE ALLEY

First Respondent

THE STATE OF VICTORIA

Second Respondent

JOHN ATKINSON & ORS

Third Respondents

JOSEPH FERGUSON & ORS

Fourth Respondents

MICK YOUNG & ORS

Fifth Respondents

Application for special leave to appeal

GLEESON CJ

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 FEBRUARY 2002, AT 10.47 AM

Copyright in the High Court of Australia

__________________

MR S.C. ROTHMAN, SC: If the Court pleases, I appear with my learned friend, MR H. BORENSTEIN, SC, for the first, second and fourth applicants. (instructed by R L Whyburn & Associates)

MR H. BORENSTEIN, SC: If the Court pleases, I appear for the third applicant. (instructed by Slater & Gordon)

MR K.H. BELL, QC: If the Court pleases, I appear on behalf of the first and second respondents with my learned friend, MR C.M. CALEO. (instructed by the Victorian Government Solicitor)

MR J.D. ATKINS: If the Court pleases, I appear on behalf of the third respondents. (instructed by Best Hooper)

MR M.(J.R.) YOUNG appeared in person.

MR R. DALTON appeared in person.

MR M. GREANY appeared in person.

MR J.A. FINLAYSON appeared in person.

GLEESON CJ: There is a certificate from the Deputy Registrar that she has been informed by the solicitor for the fourth respondents that she has no instructions to appear for the fourth respondents and that those named as fourth respondents will not be appearing.

MR BELL: Your Honours, there has been a development in this matter to which I should bring your immediate attention. Yesterday the custodian whom we represent, the first respondent, exercised the vesting power conferred by the supplemental order. We know that the first two respondents made an application on notice of motion supported by affidavit upon the basis that the vesting power had not then been exercised. It has come to pass that the custodian has found himself in the position of being able to exercise the power.

GLEESON CJ: What follows from that in terms of - - -

MR BELL: What follows from that, it seems to us, is that the underlying controversy has been wholly resolved and the proceedings before the Court have no utility. It would seem to us that the only course available to the applicants would be to discontinue. Having said that, the first two respondents did agitate the issue of adjournment and the first respondent only yesterday exercised the vesting power which has had the effect for which I have just contended. In those circumstances it seems inappropriate for us to be requesting the Court to either refuse special leave or to demand the discontinuance of the proceedings with such a short degree of notice.

GLEESON CJ: Let us see what Mr Rothman has to say.

MR ROTHMAN: Your Honours will be aware that the matter has been adjourned already twice. On each occasion it has been at the application of my learned friend to which we have consented. On this occasion we were informed when we arrived at Court this morning that a decision had been handed down yesterday and given a copy of that decision. We sought to contact our clients. We have been able to contact one of them but not all of them. The situation is this, that we now apply for an adjournment. It is most likely that the matter will be withdrawn but I do not have instructions to make that application.

GLEESON CJ: What does Mr Robinson have to say about this?

MR ATKINS: If your Honour pleases, I am appearing for the third-named respondent. Mr Robinson is my instructing solicitor and is engaged in another forum this morning.

GLEESON CJ: What is your attitude towards the - - -

MR ATKINS: We had come along, having agreed with the first and second applicants to an adjournment, on the basis that they paid our costs of this application.

GLEESON CJ: Okay. Mr Young, what is being suggested all around, as I understand it, is that because of what happened yesterday, lawyers need to get instructions from their clients that they have not been able to get so far because of the shortness of time, and it is also being suggested as a possibility that if the matter is adjourned today, then it will be discontinued. Do you have any problem with that?

MR YOUNG: The matter of the adjournment, your Honour, no, I have no objection to the adjournment because of the documentation.

GLEESON CJ: It sounds like a reasonable course.

MR YOUNG: Obviously people will have to peruse it and see what they wish - - -

GLEESON CJ: Yes, quite. You will have to do the same, I suppose.

MR YOUNG: Correct, your Honour.

GLEESON CJ: Then why do we not stand the matter out of the list today because of what has happened yesterday, and people can take their instructions and if they want to restore the matter to the list, they can do so. Are you happy with that, Mr Young?

MR YOUNG: Yes, your Honour.

GLEESON CJ: All right, we will take that course. The Court having been informed that there have been very recent developments in this matter

in respect of which not all parties have had the opportunity to obtain instructions, the matter will be stood out of today's list and any party may apply to have it restored to the list on seven days notice to the other parties. We will reserve all questions of costs.

AT 10.53 AM THE MATTER WAS ADJOURNED