BHP Billiton Limited v Schultz & Ors S385/2002 [2002] HCATrans 609 (21 November 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S385 of 2002

B e t w e e n -

BHP BILLITON LIMITED

Applicant

and

TREVOR JOHN SCHULTZ, WALLABY GRIP LIMITED, WALLABY GRIP (NAE) PTY LTD, WALLABY GRIP (NSW) PTY LTD and AMACA PTY LIMITED (formerly JAMES HARDIE & CO PTY LIMITED)

Respondents

Application for expedition

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 21 NOVEMBER 2002, AT 9.30 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please your Honour, I appear with my learned friend, MR T.G.R. PARKER, for the applicant on the special leave application and the applicant on the motion for expedition. (instructed by Piper Alderman)

MR D.R.J. TOOMEY: May it please your Honour, I appear for the respondent on the application for expedition. (instructed by Turner Freeman)

HIS HONOUR: I have a certificate from the Deputy Registrar indicating that she has been informed by the solicitors for the second, third, fourth and fifth respondents, Wallaby Grip Ltd, Wallaby Grip (BAE) Pty Ltd (in liquidation), Wallaby Grip (NSW) Pty Ltd (in liquidation) and Amaca Pty Limited (formerly James Hardie & Co Pty Limited), that the second third, fourth and fifth respondents enter an appearance and submit to the orders of the Court, save as to costs. Yes, Mr Walker.

MR WALKER: Your Honour, I am not sure whether your Honour will have had an opportunity to see the very recently filed argument for the special leave.

HIS HONOUR: Yes.

MR WALKER: Without going to that in detail, may I simply attempt to summarise as follows, namely that special leave to appeal is sought from a decision of Justice Sully - - -

HIS HONOUR: Yes, I have read Justice Sully's two decisions.

MR WALKER: And your Honour appreciates that there is under the State legislation no appeal within the Supreme Court of New South Wales from that decision. There is before the Court an application for special leave to appeal. Today's application is for expedition of that application.

HIS HONOUR: Yes, I understand that. There is a problem, is there not, under the cross-vesting legislation in the way of appealing to the Court of Appeal? Is that correct?

MR WALKER: It is forbidden.

HIS HONOUR: I dimly remember this from the Bank Invest line of cases.

MR WALKER: That is right. It is forbidden within the Supreme Court, section 13 of the Act.

HIS HONOUR: So, is it without question that appeal lies to this Court?

MR WALKER: No, I cannot say that, for this reason: we have an extremely straightforward argument, namely - - -

HIS HONOUR: But there is a judgment of a Supreme Court, is there not?

MR WALKER: We assert it is and that it therefore fits within section 73 of the Constitution and is regulated by section 30 of the Judiciary Act, relevantly only by the requirement for special leave. Hence, the application.

HIS HONOUR: Is the question whether it falls within judgment, order, decision or - - -

MR WALKER: That must be a question, yes. Indeed, as we - - -

HIS HONOUR: "From all judgments, decrees, orders, and sentences" - well, "orders" is very wide, one would think. Something different from judgment.

MR WALKER: Yes. One question may be - and I do not for a moment suggest that is live in this case, your Honour - whether what Justice Sully was doing, what judges of the Supreme Court do, under that legislation is not judicial but administrative. Your Honour will appreciate that simply for me to state the question that way is to load the dice in our favour on the outcome. If judges of a court do it because they are judges of a court and it is about the disposition of business in the court, your Honour will not be surprised to hear that we will be submitting that in accordance with accepted principle, sound principle on authority, that that is a judicial act and what results is a judgment, order, et cetera.

So that will be our section 73 Constitution/section 30 argument for the competence of the application for special leave to appeal because of the competence of an appeal. But your Honour asked me - - -

HIS HONOUR: There was a case from the Victorian Court of Appeal, was there not?

MR WALKER: Exactly. Your Honour asked whether there might be difficulty about it and I simply draw to attention that Chief Justice Mason raised the question that your Honour has raised towards the end of argument in an unsuccessful application for special leave to appeal in a decision which is indexed as Reidy v Trustees of the Christian Brothers of 8 December 1994. I will not expound the matter because there was nothing - - -

HIS HONOUR: Well, so long as I am satisfied that there is an arguable point about there being a special leave application properly before the Court, that is all I need. I do not have to decide whether there is a good appeal on foot. So that the real issue would seem to be whether you lose something irrevocably by not having your application brought on.

MR WALKER: Can I make clear that the affidavit of Anthony Kevin Phelps of 29 October upon which I rely in support of the application for expedition does not contain, your Honour, any demonstration of any irrevocable loss, substantive or forensic, to which one can now point as a matter of probabilities if this application for special leave is simply heard in the ordinary course. Rather, could I draw to attention what is excerpted in paragraph 9 of that affidavit from Justice Sully's reasons which refers, not to my client's position, but to my learned friend's client's position and add to that in those reasons which are found behind tab 5 of the exhibit, your Honour, a reference in paragraph 28 to what may or may not be speculation. His Honour starts the second sentence, third line:

If that deterioration were to reach the point -

et cetera.

HIS HONOUR: I read somewhere - I think it was in an extracted passage from the President of the Tribunal in Justice Sully's reasons that the nature of these diseases is that they can sometimes deteriorate rapidly.

MR WALKER: That is probably not the case with Mr Schultz's disease, fortunately for him.

HIS HONOUR: No. His is benign I understand.

MR WALKER: But I draw to attention paragraph 28 because there his Honour below unquestionably used as a factor in favour of success for Mr Schultz in the argument before him that something may happen. Now, I am not wishing that on the unfortunate Mr Schultz. I cannot point to evidence that it is going to happen, but I do add that as a reason why the sooner special leave to appeal is determined the better, bearing in mind that it has an effect obviously on the way in which the proceedings below, the substantive claim for relief - - -

HIS HONOUR: Now, does Mr Phelps' affidavit set out when, in the ordinary course, Mr Schultz's claim would be heard before the Tribunal if there were no intervention by this Court?

MR WALKER: Your Honour will see in paragraph 7 a reference to a timetable which, at the top of page 3 of the affidavit, culminates in "further directions on 24 March 2003". We are unable to assist your Honour by way of some proleptic estimate as to what, if the case were then ready, would be the likely hearing time, but it is obviously some time after March - - -

HIS HONOUR: My understanding is that unless I expedite, this application would not come on for hearing before the Court until after midyear.

MR WALKER: Yes.

HIS HONOUR: If I expedite, it would be heard in February or March of next year. The advantage of February or March would be that, one way or the other, both parties would know where they stand when the matter comes up before the Tribunal on 24 March.

MR WALKER: And at a time which would then enable least disruption, not merely for the parties, but for that extremely busy Tribunal.

HIS HONOUR: The disadvantage is that there has to be some merit otherwise the whole process of the special leave hearings gets out of joint because one party jumps the queue and you therefore have to have some foundation. Now, what is missing is, first of all, some evidence that there is an irretrievable position so far as the respondent is concern and I would infer that it is unlikely that the Tribunal is going to get to the respondent's case probably until midyear or maybe later anyway, especially if he has a benign condition. I know that the Tribunal moves very rapidly if a person is very unwell but that does not seem to be Mr Schultz's position.

MR WALKER: Your Honour, I simply cannot put anything to qualify what your Honour has expressed by way of estimate. Earlier than midyear I could not possibly suggest with a mention date on 24 March.

HIS HONOUR: I just do not know, but I would have thought with what I assume is a heavy workload and with the need to deal urgently with urgent cases that the Tribunal would not, in the normal course, get to the matter until after midyear when - - -

MR WALKER: I just do not know how long after midyear - - -

HIS HONOUR: No, but you have to establish something. It is not just a matter of guesswork.

MR WALKER: No, quite so, your Honour, and I wanted to make it crystal clear we do not have material enabling us to make that estimate.

HIS HONOUR: No, but you have your solicitors here and presumably your solicitors and the respondent's solicitors do a lot of this sort of work and they can give some estimate from their knowledge of when it would be likely, without some intervention by this Court, that the Tribunal would hear Mr Schultz's case. I would accept that if the parties can agree or put what they say to me - - -

MR WALKER: If the case, as we would expect, will be ready to be assigned a date at the end of the timetable which is laid down for its preparation, then from behind me and from next me I am told that the likelihood is it will be a matter of weeks, not months, for the hearing date. Now, I rely on two matters. The first is obviously that in relation to the timetable of a busy Tribunal with important work, trial work, and, second, even the fixed date we do have evidence of, 24 March 2003, being a date where the parties are expected to be able to say yes or no to going ahead, is a date which already will be affected by the ordinary course of this Court's list in special leave. That is at 24 March 2003 we are unlikely, without expedition, to have an answer to whether there is an appeal in this Court or not, and that means that already we can predict that the proceedings below, so far as they affect, first, Mr Schultz; second, my client and, third, perhaps most importantly, the Tribunal below, will be affected by that uncertainty.

HIS HONOUR: Well, it would be very inconvenient if the timetable affects - and the matter was set down or even perhaps part heard in the Tribunal and then this Court proceeded to bring the matter up for its consideration.

MR WALKER: Yes. It would be unfortunate if matters went in the order of all the work and the emotion invested in getting ready for a hearing and then the High Court decides to entertain an appeal against whether or not the hearing should proceed in quite that fashion. So we do rely upon the two things, first, the estimates that I am able to give to your Honour from the Bar table with my friend's assistance and, second, what we do know quite solidly about 24 March 2003 already imperilled as a date when the ordinary expectations of such an occasion would be that we would be spinning forward from there to a hearing date for the trial. Those are the grounds, your Honour, upon which we seek expedition.

HIS HONOUR: If one looked at this as an ordinary special leave application from what is, on the face of things, unless flawed by legal error, a purely discretionary decision of a judge exercising a practice jurisdiction, then your chances of special leave would be minimal. You really have to lift it into importance because of some constitutional or other issue and, as I see in your submissions, that that is what you are trying to do.

MR WALKER: Yes, your Honour.

HIS HONOUR: Very well. We will hear what Mr Toomey has to say. Do you oppose expedition, Mr Toomey?

MR TOOMEY: No, your Honour.

HIS HONOUR: Is it better from your client's position to have the position clear one way or the other?

MR TOOMEY: I am instructed not to oppose it, nor consent to it, your Honour, and simply to say that it is a matter for the Court.

HIS HONOUR: I am told that there is one vacancy on 14 March special leave day in Sydney. Would that be convenient to your side?

MR TOOMEY: Yes, your Honour.

HIS HONOUR: Very well. That is convenient to your side too, I take it, Mr Walker.

MR WALKER: Yes, your Honour.

HIS HONOUR: Now, do I have to make any other procedural orders, save for expediting the hearing of the special leave application? Is there any other matter to be returned on that day?

MR WALKER: No, your Honour.

HIS HONOUR: You have given the notices under the Judiciary Act.

MR WALKER: We have filed them or are about to file them - we have filed them today. That should not require any further directions.

HIS HONOUR: The orders I make are: expedite the hearing of the special leave application; order that the special leave hearing be heard in Sydney on 14 March 2003; order that the costs of the application be costs in the special leave application; and I certify for the appearance of counsel in chambers.

AT 9.46 AM THE MATTER WAS CONCLUDED