Bankstown City Council v Alamdo Holdings Pty Ltd [2004] HCATrans 437 (4 November 2004)

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Bankstown City Council v Alamdo Holdings Pty Ltd [2004] HCATrans 437 (4 November 2004)

Last Updated: 5 November 2004

[2004] HCATrans 437

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S407 of 2004

B e t w e e n -

BANKSTOWN CITY COUNCIL

Applicant

and

ALAMDO HOLDINGS PTY LIMITED (ACN 003 309 206)

Respondent

Application for expedition

HEYDON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 4 NOVEMBER 2004, AT 9.28 AM

Copyright in the High Court of Australia

MR J.B. MASTON: If your Honour pleases, I appear for the applicant. (instructed by Marsdens Law Group)

MR C.J. BIRCH, SC: May it please the Court, I appear with my learned friend, MR J. STOLJAR, for the respondent. (instructed by Speed & Stracey)

HIS HONOUR: I have read everything that has been filed. I presume, Mr Maston, you rely on the affidavit of Grant Patrick Butterfield, sworn on 1 November 2004?

MR MASTON: That is correct, your Honour, I read that affidavit.

HIS HONOUR: You do not object to any part of it, do you, Mr Birch?

MR BIRCH: No, I do not, your Honour.

HIS HONOUR: And you do not wish to cross-examine Mr Butterfield?

MR BIRCH: No, I do not.

HIS HONOUR: You rely on the affidavit of Grae Stewart McKenzie of 2 November?

MR BIRCH: I do, your Honour, yes.

HIS HONOUR: Your position, Mr Maston, is the same as his, mutatis mutandis? You do not object to it?

MR MASTON: No, your Honour, I do not.

HIS HONOUR: And you do not wish to cross-examine?

MR MASTON: I do not seek to cross-examine either.

HIS HONOUR: There is just one thing, Mr Birch, in Mr McKenzie’s affidavit. It says that proceedings for a stay and for expedition were heard by Justice Hodgson on 17 May 2004, correct?

MR BIRCH: Yes. I should indicate that that was a stay application following the judgment of Justice Gzell, pending the hearing in the Court of Appeal.

HIS HONOUR: Yes. When was it made? Justice Gzell’s ex tempore judgment was delivered on 16 December and the appeal was instituted on
22 December. Do you know when the expedition application was made to the Court of Appeal for the expedition?

MR BIRCH: I do not. I can probably tell you shortly. Yes, 28 April, I am instructed, was the date the motion was filed.

HIS HONOUR: Stay - - -

MR BIRCH: Sorry, for the stay.

HIS HONOUR: And the expedition order?

MR BIRCH: Yes.

HIS HONOUR: Mr Maston, your written submissions - - -

MR MASTON: Could I make some amendments to those, your Honour, before we go any further?

HIS HONOUR: Yes.

MR MASTON: In paragraph 8, in the first line, the last word should be “allows”.

HIS HONOUR: Yes.

MR MASTON: On page 3, paragraph (iii), the first line should read, “The applicant fears that the carrying out of the works”.

HIS HONOUR: Yes.

MR MASTON: More importantly, at page 4, last paragraph, second and third lines, “The hearing of the” – it should be “appeal” rather than “special leave application” – “is likely to be short (estimate 2 hours)”. I do not think we would get away with two hours on a special leave application.

HIS HONOUR: Yes, that was a proposition that caught my eye. But one other proposition that caught my eye was the start of paragraph 14:

All steps have been taken by the applicant to advance the special leave application –

That is not correct, surely? On 15 September, the Court of Appeal dismissed the appeal. The special leave application could have been filed that day or the next day.

MR MASTON: Yes. There were a number of administrative steps that the Council needed to perform before it could give instructions for the filing of the special leave application and - - -

HIS HONOUR: That may be, but if it wants expedited hearings, it has to expedite everything.

MR MASTON: Yes. I regret that delay, your Honour, but the explanation is that the Council needed to meet, the Local Government Association was involved, and, of course, serious advice was needed from leading counsel about the matter before the appeal was commenced.

HIS HONOUR: Well, I do not wish to flog this unduly, but - - -

MR MASTON: I do not want to trivialise what your Honour is saying - - -

HIS HONOUR: - - - it cannot have been a complete surprise, what the Court of Appeal did, one way or the other, to either side. I mean, it might have gone the other way and it would not have been a surprise to counsel for the respondent. Secondly, of course, the special leave application is one thing, the draft notice of appeal is another. That, I think, was only filed this morning.

MR MASTON: Yes, I have that document, if I could hand it up to your Honour.

HIS HONOUR: Actually, it is in the file now, so that is not necessary. Thirdly, the written submissions - - -

MR MASTON: Yes, we had hoped to file them yesterday afternoon. I am informed that within 48 hours they will be completed. They have been drafted and there is detailed argument there, but great care is being taken and unfortunately it is taking longer than we had hoped. I can say no more than that, your Honour, but it would be filed and served within 48 hours.

HIS HONOUR: What about 28 or so hours?

MR MASTON: Even that, your Honour.

HIS HONOUR: Well, you want expedition.

MR MASTON: Yes, I appreciate that.

HIS HONOUR: I cannot just walk around and have a chat to Justice McHugh and the Chief Justice and say, “Perhaps we could have a
special leave hearing next Tuesday for them”. We have to get ready. A lot of things have to be done.

MR MASTON: Yes, I understand, your Honour.

HIS HONOUR: Very well. Thank you, Mr Maston.

In this application for expedition of an application for special leave to appeal from orders made by the New South Wales Court of Appeal on 15 September 2004, each side has advanced distinct arguments for expedition. They appear in the affidavits of Grant Patrick Butterfield, the solicitor for the applicant, sworn on 1 November 2004, and Grae Stewart McKenzie, the solicitor for the respondent, sworn on 2 November 2004.

From the applicant’s point of view the most significant of these, to my mind, is that if special leave is granted and the appeal is upheld, but neither expedition nor a stay is granted, the applicant will have to spend more than $2.7 million on engineering works, pursuant to orders of the courts below. This will make the appeal futile, since its goal is to seek a construction of section 733 of the Local Government Act 1993 (NSW) which would give it an immunity from having to do that.

From the respondent’s point of view, any delay in resolving proceedings in this Court may, depending on what stay the New South Wales Court of Appeal orders, cause continued damage to its property in the form of rental loss of $100,000 a year and lost value to the reversion of $1.4 million until the works contemplated by the orders of the courts below are carried out. The respondent is not protected against being prejudiced in that way by any order for an inquiry as to damages, nor has any undertaking as to damages been offered.

An applicant for expedition and a respondent who, like the present respondent, also desires it must explain why the hearing which it is desired to expedite should receive preference over all the many hundreds of other cases awaiting a special leave hearing, almost all of which have been on foot for years before they came to this Court. That figure includes cases involving persons serving long terms of imprisonment, who will secure liberty earlier if there is expedition and the proceedings in this Court have a particular outcome. It includes cases which may result in an order for a new trial, which should be conducted as early as possible, before memories fade and records are lost. It includes many claimants for refugee status, who are under stress because of the uncertainty affecting their future in Australia, and some of those claimants are in detention.

While not all litigants in this Court desire a speedy hearing, it will only be in rare cases that one party does not, because that party will want to obtain some proprietary, pecuniary or other advantage which, if that party is correct, the law allows for, and that party wants to terminate all uncertainty about it. Hence the authorities speak of the need to show an urgent aspect or exceptional circumstances or a need different in kind from other cases.

So far as the arguments of the parties point to financial losses caused by delay, they are strong, but they do not outweigh some other types of claim. The applicant’s argument based on futility goes beyond that, and by itself would clearly justify expedition, but for one matter. The applicant’s written submissions stated in paragraph 9:

It could be up to one year before the special leave application is heard in the ordinary course. If leave were granted, the determination of the appeal could take eighteen months.

There is no doubt that litigation in this Court can be attended by extensive delays. The first proposition stated by the applicant is pessimistic for the Sydney list, but wildly optimistic in relation to lists in other parts of the country. The second proposition is a little pessimistic, but one understands why it was put.

These delays can be explained largely by the following facts, that the Court can only hear a limited number of appeals each year, that without damaging its capacity to hear those appeals properly it can only hear a certain number of special leave applications, and that the number of special leave applications filed is above that number and tends to increase. But to some extent the delays are due to the failure of the parties, particularly applicants, to ready their application for hearing as fast as possible.

In a small way, that proposition is illustrated by this case. It is a case in which the courts below have been able to move with speed. The trial judge, Justice Gzell, in a case which before him was of some complexity, conducted a trial between 17 and 20 November 2003, delivered a reserved judgment on 2 December 2003 and made orders after delivering an ex tempore judgment on 16 December 2003. On 22 December 2003, the applicant filed a notice of appeal. It was not until 29 April 2004 that a notice of motion seeking expedition of the appeal to the Court of Appeal and a stay of Justice Gzell’s orders was filed. Justice Hodgson heard the application on 17 May 2004, before granting expedition.

There was no explanation on the evidence as to why it took so long to seek expedition from the Court of Appeal. The Court of Appeal then heard the case on 15 July and delivered judgment on 15 September, which, considering its lengthy and detailed character, is far from tardy. These curial efforts have not been matched by the applicant’s endeavours in this Court. Paragraph 14 of the applicant’s written submissions said that:

All steps have been taken by the applicant to advance the special leave application . . .

The Court of Appeal’s decision having been delivered on 15 September 2004, at least in theory, a special leave application could have been filed on that day or the next day. Counsel for the applicant has explained that some administrative steps had to be taken by the applicant, Bankstown City Council, in conjunction with other parties.

In my opinion, that does not explain why, if expedition were in mind at that time, the special leave applications were not filed virtually immediately, together with the notice of appeal, together with the applicant’s summary of argument. In fact, the special leave application was not filed until 13 October, which was close to the last possible time for doing so. The draft notice of appeal has just been filed and the applicant’s summary of argument is, it is hoped, a document which will be filed within 48 hours.

There has not been any breach of the Rules, but the Rules only set out maximum periods for standard cases, not periods for those who want expedition. A further matter is that the expedition application itself was not filed until last Monday, 1 November. Had it been filed on 15 September and been granted, the special leave application itself might have been heard by now.

This may only be a personal view, but it is important to stress that, to my mind, the merits of a claim for expedition, however strong in themselves, can be affected by how far a party seeking expedition has bestirred itself, before making the application.

Despite what has just been said, the matter should be expedited. The first vacant date is in February next year, but the matter will be fixed for hearing on 30 November 2004. That degree of expedition has only been achieved by squeezing the matter into an already full list on that day, with consequential strain for the Registry staff.

It should be pointed out that if special leave is granted, it would be advisable for the written submissions to be employed in the appeal to draw attention in detail to the extent to which the matter is urgent. If that is done, it may be possible for the Court either to decide the whole of the matter at the close of the argument or at least to make orders which would enable the parties to take whatever course they wish to after that.

It remains necessary to work out directions which will ensure that the application books are prepared in sufficient time before 30 November to enable the members of the Court hearing the matter to ready themselves for the hearing on that day. I will propose a timetable and then counsel can comment on it.

The first step would be for the applicant to file and serve its summary of argument on or before tomorrow. The second step would be for the respondent to file and serve its summary of argument on or before Friday, 12 November. Although it would not be necessary to make any direction about this, at that point the Registry will generate an index and seek the comments of the parties on it, with a view to the application books being filed pursuant to a fourth direction which is contemplated. The third direction would be that the applicant file and serve any reply which it wishes to on or before Tuesday, 16 November, and the fourth would be that the application books be filed and served on or before Friday, 19 November. Is there any problem with those directions?

MR MASTON: No, your Honour.

MR BIRCH: They are fine, your Honour.

HIS HONOUR: In that case, I order:

1. That the hearing of the application for special leave be expedited and fixed for hearing on 30 November 2004 in Sydney;

2. That costs be reserved.

I certify that this was an appropriate matter for the attendance of counsel in chambers. I direct:

1. The applicant to file and serve its summary of argument on or before Friday, 5 November 2004;

2. The respondent to file and serve its summary of argument on or before Friday, 12 November 2004;

3. The applicant to file and serve any reply on or before Tuesday, 16 November 2004;

4. The application books to be filed and served on or before Friday, 19 November 2004.

MR BIRCH: Sorry, your Honour, if I could just raise one - - -

HIS HONOUR: Yes, certainly.

MR BIRCH: Just two short matters. One is that it would be of assistance if there could be a transcript available, and I understand your Honour needs to certify that the transcript of today be available within 24 hours or something of that sort and that will permit us to access it.

HIS HONOUR: I cannot imagine there is anything of great value that has been recorded, but I certify or take whatever other step is necessary to ensure that the transcript is available to the parties.

MR BIRCH: Thank you, your Honour. The only other matter was that so far as the costs of the application were concerned, we assume that they would become the costs in the special leave application. I do not know whether - - -

HIS HONOUR: They will be reserved. In other words, if the special leave application fails and you get a costs order, that will cover these costs. If the special leave application succeeds and the appeal fails, that will be covered by the order that one would expect. If the appeal succeeds, then you, I am afraid, will have to bear the costs of today.

MR BIRCH: Thank you, your Honour.

HIS HONOUR: The Court will now adjourn.

AT 9.47 AM THE MATTER WAS CONCLUDED