Port Stephens Council v Melaleuca Estate Pty Ltd [2006] HCATrans 277 (5 June 2006)

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Port Stephens Council v Melaleuca Estate Pty Ltd [2006] HCATrans 277 (5 June 2006)

Last Updated: 7 June 2006

[2006] HCATrans 277

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S91 of 2006

B e t w e e n -

PORT STEPHENS COUNCIL

Applicant

and

MELALEUCA ESTATE PTY LTD

Respondent

Summons for expedition

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 5 JUNE 2006, AT 9.34 AM

Copyright in the High Court of Australia

MR E.G. ROMANIUK: May it please the Court, I appear for the applicant. (instructed by Sparke Helmore)

MR M. GREEN: May it please the Court, I appear for the respondent. (instructed by Hunt & Hunt)

HIS HONOUR: Mr Romaniuk, I have read this material. You rely, I take it, on the affidavit of Mr Paul Jayne sworn 30 March 2006 and 17 May 2006. You read those affidavits, I take it?

MR ROMANIUK: Yes, your Honour. There is also an affidavit that has been sworn by Mr Green - - -

HIS HONOUR: I do not know that I have seen that. I did see the note that the respondent supported the application for expedition. Is that all that says, and annexes a chronology?

MR GREEN: It gives a chronology, your Honour. It also provides a further statement of the cost to my client of a delay in the execution of works, in other words, the holding costs, quantifies the holding costs.

HIS HONOUR: Yes. The only counter-thought that went through my mind as I read this was that you were only basically here, both of you, because the Court of Appeal was not going to do anything unless you made this application to us and I wondered if you really and truly wanted the expedition or if you were just doing this because the Court of Appeal laid it down as a condition of the application of the grant of some relief by them from the injunctions that they had ordered.

MR ROMANIUK: The applicant gave the undertaking to make the application, but my friend’s client certainly has always sought expedition at all material stages. So my friend’s affidavit material deposes to a holding cost of finance in the development and also deposes to the fact that if a certain system of drainage works is implemented, if that system of works was not required to be implemented because of the outcome of this High Court proceeding, then that would be a wasted cost as well and that is quantified as in the order of some millions of dollars.

HIS HONOUR: Yes. As I understand it, Stage 3 is about to be started and Stage 3 will be different, depending on the outcome of the application for special leave and any appeal that might follow it, in the event that the appeal succeeds, Stage 3 would be built differently than in the event that the appeal and application fail in this Court; is that correct?

MR ROMANIUK: I think that is correct. I think, in effect, Mr Green’s client has to assume for the purposes of building Stage 3 at the current time that we may be successful and therefore has to put in a system of works.

HIS HONOUR: But does that not remove the urgency?

MR ROMANIUK: Melaleuca is going to proceed to do the development anyway. That is correct, is it not?

MR GREEN: Your Honour, if I may assist? Melaleuca’s position is that it is under some contractual obligations to purchasers to commence upon the construction of Stage 3. The effect of the Court of Appeal’s orders to stay for 18 months – originally to stay for 18 months the orders of that court means that we are in a state of limbo. The anticipation, of course, now is that if this Court decides whether to look into the matter or not then, of course, the outcome will be different.

HIS HONOUR: Was the Court of Appeal decision given before the case of Bankstown v Alamdo?

MR GREEN: It was given afterwards, your Honour, and in fact there was significant argument in the Court of Appeal in relation to the effect of this Court’s decision in that matter and whether or not there was – the applicability of that decision and how it applied to the facts of this case. Melaleuca’s position in this Court is that the facts of this case are quite unusual in a number of respects and that is made out in the submissions made in relation to the special leave application.

The position though is that whatever be the case there is a need to either do something within the 18-month period originally set by the court or, alternatively, to at least know where the respondent lies in terms of its avoided costs or unavoidable costs, otherwise the whole nature of the appeal becomes rather speculative, one may say.

HIS HONOUR: Yes. You heard what I said in the previous application. There is a slot that I could assign in the Melbourne list on 16 June. Are the papers all ready for this?

MR GREEN: The application book is ready, your Honour. In fact, it has been prepared in a bound form and provided by those instructing my friend to those instructing me this morning, so it is ready to go. The preference is to take that date, for obvious reasons, rather than to put some pressure on the Court to make any decision. That is the preference of the - - -

HIS HONOUR: Yes. There is less reason to delay – if the matter is one for expedition, there is less reason to delay the listing to Sydney in August,
given the resources that are available to both the applicant and the respondent.

MR GREEN: Yes, that is correct, your Honour. I understand my friends may have some difficulty in terms of counsel, but I think that the date in Melbourne can suit them, at a pinch. It would certainly be the preference, bearing in mind the evidence that is before this Court in relation to the effect – having the matter expedited and listed in August is tantamount to not expediting the matter. That is the position of the respondent because of course the planning that is required and the lead time required.

HIS HONOUR: I will hear what Mr Romaniuk has to say about the June date. What is the problem, Mr Romaniuk?

MR ROMANIUK: Mr Walker SC is briefed and he has currently a Sydney commitment and a Melbourne commitment on that day.

HIS HONOUR: He has probably a matter in the special leave list here, but when a similar situation arose just a couple of weeks ago, I was sitting in Canberra with Justice Hayne and Justice Crennan and we made arrangements for Mr Gageler to make his appearance to us by special leave from Sydney to Canberra and I do not imagine there would be any technical problem of Mr Walker making a similar appearance from Sydney to Melbourne, so I do not think that would be reason enough to delay the matter until August.

I am not, myself, assigned to sit in Melbourne, but I am sure if an application were made to the Registry that would be referred to the presiding Judge and the technical link between Sydney and Melbourne could probably be established. I will just ask the Deputy Registrar if that can be done. I do not ever remember seeing the video screen in the Melbourne Court but perhaps it can be done. I am told that it is probable that it can be done.

MR ROMANIUK: Thank you, your Honour.

HIS HONOUR: Do you know if that is where Mr Walker is briefed that day.

MR ROMANIUK: Mr Walker has at the moment a matter in Sydney and a matter in Melbourne, so I suppose, in that sense, he will have two in Melbourne and one in Sydney.

HIS HONOUR: He may opt to go with you and you get a trip to Melbourne.

MR ROMANIUK: Yes.

HIS HONOUR: I will order expedition of the hearing of the application for special leave in this matter. I fix the hearing for 16 June 2006 in Melbourne. I give leave to the parties to approach the Registry in the event that convenience suggests that a video link should be established for both or one counsel from Sydney to Melbourne. The costs of the application before the Court today will be costs in the application for special leave.

The Court will now adjourn until 10 o’clock.

AT 9.43 AM THE MATTER WAS CONCLUDED