Nominal Defendant v GLG Australia Pty Ltd & Ors [2004] HCATrans 365 (24 September 2004)

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Nominal Defendant v GLG Australia Pty Ltd & Ors [2004] HCATrans 365 (24 September 2004)

Last Updated: 29 September 2004

[2004] HCATrans 365

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S334 of 2004

B e t w e e n -

NOMINAL DEFENDANT

Applicant

and

GLG AUSTRALIA PTY LTD

First Respondent

SALIM FAHD TLEYJI

Second Respondent

READY WORKFORCE PTY LIMITED

Third Respondent

Application for expedition

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 24 SEPTEMBER 2004, AT 9.32 AM

Copyright in the High Court of Australia

MR P.J. DEAKIN, QC: If your Honour pleases, I appear for the applicant with MR P.J. NOLAN. (instructed by Sparke Helmore)

MR J.E. MACONACHIE, QC: If your Honour pleases, I appear with MR N.J. POLIN for the first respondent. (instructed by Henry Davis York)

HIS HONOUR: The Court holds a certificate from the Deputy Registrar that she has been informed by the solicitors for the second and third respondents that they will submit to any order of the Court save as to costs.
Yes, Mr Deakin, you have a motion here.

MR DEAKIN: Yes, it is an application by us to expedite the application which has been filed in this Court for special leave to appeal arising from orders entered by the Court of Appeal in New South Wales on 23 August 2004. The application is supported by an affidavit of Simon Peter Morgan sworn 7 September 2004. Could we formally seek to read that?

HIS HONOUR: Yes, I have read that.

MR DEAKIN: The only other material we wanted to put before your Honour – and we have given a copy to my learned friend – is that we have been kindly provided by the appellant in the Allianz matter with their submissions in this Court. Could we hand that to your Honour?

HIS HONOUR: Yes, I have read them. I will be reading those again too next Friday.

MR DEAKIN: Yes.

HIS HONOUR: Now, it is logistically impossible to connect this with the appeal that is being heard next Friday. No doubt both of you will have some talks with the counsel on their respective interest in that case.

MR DEAKIN: Yes. Could I inquire just on that topic, your Honour, it is plainly logistically impossible to link any appeal in this matter. Is it logistically impossible, could we inquire, to have the special leave application listed before the Full Court next Friday?

HIS HONOUR: I think that would be even worse.

MR DEAKIN: Would it? Yes. We were only inquiring as to whether that was - - -

HIS HONOUR: Yes, I understand. Now, is the application for expedition of the leave application opposed?

MR MACONACHIE: Well, we do not see it as our role to oppose it, your Honour, as we said in our written submission that came in yesterday.

HIS HONOUR: Yes, I see that.

MR MACONACHIE: Those by whom I am instructed are anxious to see the end of this litigation.

HIS HONOUR: Yes.

MR MACONACHIE: So that there is no opposition to it, but at the same time we can advance nothing and we see nothing in that which has been put before the Court by my learned friend to support expedition, that is to displace others, and there are reasons why this case has a very tenuous grasp on a prospect of success on the special leave application which may cause your Honour to think that expedition would be to some extent to pre-empt the decision of the Court on special leave. Factual circumstances are such that it is just not an Allianz case, but I can develop that more fully later if your Honour wants me to.

HIS HONOUR: Yes, I understand that. Thanks, Mr Maconachie. You have a natural justice complaint, have you not?

MR DEAKIN: We do as well, yes, your Honour. There are really three issues additional to Allianz that we seek to raise, so whatever the outcome in the Allianz Case we seek - - -

HIS HONOUR: That is what I was wondering. If you lose on the Allianz point, if I can put it that way, and you lose on the natural justice point, would you still have an independent prospect of success as you see it on the other two grounds?

MR DEAKIN: On the causation ground, yes, your Honour. On the costs issue ground, only in relation to the order for costs, so that is a limited issue only, but on the causation ground, yes, your Honour, we do. They are independently, we would seek to persuade the Court, special leave points.

HIS HONOUR: Yes. Well, what I propose to do, I would make the order for expedition of the application but on this further basis, gentlemen, that at the moment there are no empty slots in the remaining hearings for this year of special leave applications in Sydney. In the nature of things, though, one or two matters tend to drop out. In particular on Tuesday, 30 November, we are having two panels in Sydney to hear leave applications and we have one panel on 10 December. Now, if I grant the expedition application, the parties should hold themselves ready on relatively short notice. You have another fortnight or so for your written submissions, I think.

MR MACONACHIE: I think we have until the end of next week, your Honour, and we will have our document in some time on Tuesday or Wednesday, we hope.

HIS HONOUR: Yes. So, gentlemen, if you could put question marks in your diary for Tuesday 30^th and Friday 10^th and be on call, as it were, in case something drops out.

MR DEAKIN: Yes, that certainly suits us. Thank you very much, your Honour.

HIS HONOUR: Otherwise the first available date will be in the new year.

MR DEAKIN: We understand that, your Honour.

MR MACONACHIE: Before your Honour disposes of the matter, I have raised with my learned friend this morning the fact that this public authority – and it is the MAA – which is the Nominal Defendant and it stands in the place of the insurer as if it were the insurer, has as yet not paid the judgment. If your Honour is to grant expedition, we would respectfully submit that it being a public authority, it should be on condition that the order of the Supreme Court be complied with, there being absolutely no reason why that should not happen.

HIS HONOUR: Yes.

MR DEAKIN: My friend has raised it with me. For our part, your Honour, we do not see any difficulty with it. I just do not have instructions to consent to it, but we would ordinarily expect it to be done.

HIS HONOUR: I would have thought so. There is an order.

MR DEAKIN: Yes, indeed.

HIS HONOUR: And presumably your client should comply with them just like ordinary people.

MR DEAKIN: Exactly. If we have any say in it, it will be complied with. Of course it will be, your Honour. I was not aware of it until my friend raised it with me this morning.

HIS HONOUR: Yes. Well, if it had not complied with it, it is really a question to agitate back in the Supreme Court, is it not? It is their order.

MR DEAKIN: Yes. Appropriate steps can be taken, but otherwise it is an order and we do not seek a stay of the order as a condition of - - -

HIS HONOUR: No, I see that. In addition to those two dates I mentioned, which were 30 November and 10 December, something may also drop out on 19 November, so you should add that to the prospective list.

MR DEAKIN: Thank you very much, your Honour.

HIS HONOUR: I make the order for expedition of the special leave application and costs of the summons for expedition will be costs in the leave application. I certify for counsel.

MR DEAKIN: If your Honour pleases.

HIS HONOUR: I will now adjourn.

AT 9.39 AM THE MATTER WAS CONCLUDED