Hall & Ors v City of Burnside & Ors [2007] HCATrans 419 (8 August 2007)

Last Updated: 22 August 2007

[2007] HCATrans 419

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A23 of 2006

B e t w e e n -

GRANT HALL, JILL HALL AND STEPHEN HALCROW

Applicants

and

CITY OF BURNSIDE

First Respondent

CITY APARTMENTS PTY LTD

Second Respondent

KATNICH DODD

Third Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 8 AUGUST 2007, AT 4.22 PM

Copyright in the High Court of Australia

MR D.M. QUICK, QC: May it please the Court, I appear with my learned friend, MR M.W. CLISBY, for the first and second applicants. (instructed by Mark Clisby)

MR D.G.M. RIGGALL: May it please the Court, I appear for the third applicant. (instructed by O’Loughlins)

MR W.J.N. WELLS, QC: May it please the Court, I appear with my learned friend, MR M.J. RODER, for the second respondent. (instructed by Clelands)

GLEESON CJ: Mr Riggall, are you a party to this application for an adjournment?

MR RIGGALL: Your Honour, we are party to an application to be removed as an applicant because.....the respondents.

GLEESON CJ: And there is no contest about that. Can we make that order now so that you can - - -

MR RIGGALL: Yes, your Honour.

GLEESON CJ: Yes. Are you happy with that, Mr Quick?

MR QUICK: Your Honour, my learned friend is to propose that the third applicant now be joined as a respondent, but we have settled the dispute between us and the application will – that is, to be joined as a respondent – we will be consenting to that.

GLEESON CJ: But is there any reason now why we cannot release the third applicant from further attendance at these proceedings?

MR QUICK: No, your Honour, and I would invite the Court to do so.

GLEESON CJ: Are you happy with that, Mr Wells?

MR WELLS: May it please the Court.

GLEESON CJ: Very well, we will do that.

MR RIGGALL: May it please the Court.

GLEESON CJ: Yes, Mr Quick, this is the application for adjournment, which I gather is opposed, Mr Wells, is that right?

MR WELLS: Yes, it is, your Honour.

GLEESON CJ: Yes.

MR WELLS: Sorry, your Honour, perhaps in announcing my appearance with my learned friend, I ought also to read an affidavit in opposition to the application for an adjournment.

GLEESON CJ: We had better get the evidentiary basis of the application clear. What is the evidence on which you move, Mr Quick?

MR QUICK: Your Honour, the affidavit of Mark Wallis Clisby, filed at the same time as the application for adjournment - - -

GLEESON CJ: Is there any objection to that, Mr Wells?

MR WELLS: No, your Honour.

GLEESON CJ: Yes, we have read that affidavit. Yes, Mr Wells.

MR WELLS: We seek to read the affidavit of Thomas Alexander Walker, may it please the Court, filed 7 August.

GLEESON CJ: Sworn 6 August?

MR WELLS: Yes, your Honour.

GLEESON CJ: Yes, any objection to that, Mr Quick?

MR QUICK: No, your Honour.

GLEESON CJ: All right, we have read that. Yes, Mr Quick.

MR QUICK: If the Court pleases, the impression that one would get from reading the papers, including the affidavits that have just been read, in particular, the affidavit of Mr Walker, is that the first and second applicants did not in the outset seek orders in the nature of declarations and an injunction. That impression is wrong. They did seek in the summons initially orders for declarations and an injunction.

The second thing, or the second impression that the Court may have from looking at the documents, is that the applicants, that is, the first and second applicants, sat by and did nothing for a very long time. In this respect the chronology of events filed by the second respondent omits to mention that there was a mediation and the mediation, it would appear, concluded just recently. Indeed, as recent as 30 July the deeds in settlement of the mediation which involved the third applicant only – I am sorry, the settlement involved the third applicant only, the mediation involved all parties, including the first and second - - -

CALLINAN J: Is this in an affidavit anywhere?

MR QUICK: I beg your pardon, your Honour?

CALLINAN J: What you are telling us you are telling us from the Bar table or - - -

MR QUICK: No, your Honour, it is in the affidavit material. I can refer your Honour to the points when that emerges.

CALLINAN J: Right, could you do that please?

MR QUICK: Your Honour, in Mr Clisby’s affidavit, in paragraph 7 he says:

I am informed by the First and Second Applicants and verily believe that they and the Third Applicant participated in a mediation of the dispute with several of the Respondents, namely the First and Second Respondents, which resulted in an in principle agreement between the Third Applicant and one or more of the Respondents. The terms of this in principle agreement are confidential and have not been disclosed to the First and Second Applicants or to myself.

If the Court goes back to paragraph 5:

The solicitors for the Third Applicant advised me for the first time on 30 July 2007 –

nine days ago –

that the Third Applicant was seeking to discontinue from these proceedings.

GLEESON CJ: You have made an application for special leave to appeal against a decision of the Full Court of the Supreme Court of South Australia that was given almost a year ago and the matter has been listed for hearing before us and in the ordinary course would come on for hearing before us at 9.30 tomorrow morning. Why should it be adjourned?

MR QUICK: Because, your Honour, the Full Court has dealt with only two of the five orders sought originally in these proceedings before the Supreme Court at first instance. The other three applications are still on foot. In those applications the issue of abuse of process will arise. There is substantial reason to make submissions to the Court, and I am able to do that as part of this application, to show that the Full Court did not decide the issue of abuse of process but it did take into account, as if it had been determined against the applicants, that there was or would be an abuse of process if the applicants now proceeded with the applications for an injunction and declarations.

GLEESON CJ: Sorry, what are you trying to achieve relevant to your application for special leave to appeal from the Full Court by this adjournment?

MR QUICK: Your Honour, the first and second applicants might fall between two stools. The proceedings which now are to be heard before Justice Bleby on the 24th of this month may well result in Justice Bleby saying there will not be an abuse of process if these applications for declaration and injunction proceed and that is because, although the substantial issue of invalidity arises in these applications and also in the application dealt with by the Full Court, the result may differ dependent upon the considerations which are relevant to the particular remedies, so that in connection with the application for an injunction or declarations they may fail for reasons specifically concerned with those remedies.

However, if it is the case that there is no abuse of process by reason of continuation of those proceedings, then the Full Court has made a mistake by saying that the substantial prejudice suffered by the second respondent as a consequence of the extension of time, the Full Court has erred by saying there will be an abuse of process but there will be a judgment of the Court saying there is no abuse of process.

Now, if the Court decides as a matter of fact, a matter which has not been decided by the Full Court, that there would be no abuse of process, then the strength of the argument for special leave in the application for extension of time for judicial review becomes so much stronger and it becomes so much stronger because the majority of the Full Court decided the major reason why the application should not be granted was prejudice to the second respondent and that prejudice arose by reason of the fact that it had certainty that these issues had been litigated and would not rise again.

GLEESON CJ: Do you mean you are hoping to attract from Justice Bleby a decision that is inconsistent with the decision of the Full Court that you seek to appeal against?

MR QUICK: No, your Honour. The Full Court did not decide the abuse of process point. It specifically mentioned Chief Justice Doyle, with whom Justice Duggan agreed, said, “It is not necessary for us to decide the issue of abuse of process”, and in dealing with the abuse of process point the learned Chief Justice talks about it being arguable that there would be an abuse of process. But he has then gone on effectively to say, there is prejudice arising from the fact that the second respondent has certainty the issue of invalidity will not arise again and, in our submission, that would be plainly wrong if in fact the applications for injunction and declarations are able to proceed on the same basis of invalidity.

Now, there is nothing inconsistent with the majority of the Full Court about that because they eschewed the problem. But what would happen is, the Full Court not having decided it but effectively reasoning that the second respondent had lost certainty, if the Full Court was wrong in that and it is found that the other proceedings may continue, then the application for special leave becomes so much stronger because the substantial reason for prejudice found by the Full Court, the most prejudice found by the Full Court, would disappear. It would be illusory to say that the second respondent had certainty when the same arguments could be put but in connection with a different remedy.

GLEESON CJ: When do you propose we should deal with your application for special leave to appeal?

MR QUICK: Your Honour, later this year as soon as a decision is made by Justice Bleby and either - - -

GLEESON CJ: What if somebody appeals against Justice Bleby?

MR QUICK: That matter would have to be dealt with, your Honour, I agree. But, your Honour, there is substantial injustice to the first and second applicants by it having been not determined that there was an abuse of process but it having been - - -

GLEESON CJ: You might be right about that and that might be an argument in support of your application for special leave to appeal, but you seem to want to have the application for special leave to appeal adjourned so that what happens in some other proceedings can be then relied upon by you to bolster your argument. Is that what is going on?

MR QUICK: No, your Honour. The remedies are different. We might well succeed on judicial review but no longer have it available to us because we do not get special leave. On the other hand, if the matter is adjourned, the issue of abuse of process can actually be determined and the Court will be assisted by a judgment of at least the judge at first instance and possibly a Court of Appeal as well.

GLEESON CJ: The special leave application has hardly been rushed on. As I said, it is nearly a year since the decision in question. There has been a welter of litigation about this matter as far as I can see.

MR QUICK: There has, your Honour, but, with respect, it is wrong to visit all that delay on the first and second applicants. As I say, there was a mediation involving all three applicants and also involving at least the second respondent. Now, that has only just concluded.

CALLINAN CJ: That concluded within the year. I do not know, and I do not want to know, who instigated the mediation, but the fact is you are talking about something that took two or three days presumably in a year. It was only done at the eleventh hour before this matter was listed.

MR QUICK: Your Honour, the whole purpose of the mediation was to bring an end to the litigation.

CALLINAN J: You waited 11 months for that, did you not, 11 months after your application was filed?

MR QUICK: We did, but so did the other parties. They engaged in the - - -

CALLINAN J: It is your application, not theirs.

MR QUICK: It is incorrect to say that we delayed the parties engaged in mediation. They were all involved. It was partially successful. It was for the benefit of the second respondent and the third applicant, something was achieved. The whole purpose of that was to bring to an end litigation, to save cost, to save court time, and that was partially achieved. The fact that it looks like we have just delayed and it looks like we have had a last minute change of representation, not so. The Court will see on the file that these proceedings were originally instituted by the one solicitor for all three applicants and, lo and behold, just after the mediation there is a change of representation for all three applicants. That looks very much like the first solicitor declined to act any further and there would be good reason for that.

CALLINAN J: Mr Quick, there was one basis the application today seems to be put on is because you were in Sydney, is that not - - -

MR QUICK: No, your Honour, that is the reason why the document is not signed as required by the rules of court and the practice direction.

CALLINAN J: All right, yes, I understand.

MR QUICK: I beg your pardon, your Honour, I put that rather forcefully, but with respect.

CALLINAN J: No, I understand that.

MR QUICK: So that what has actually happened is that the parties, by their embarking upon mediation, sought to avoid a continuation of the dispute. They all sought that. That necessitated a delay. We know that it is only just finished because the documents were not even signed, were not even all finalised, by the 30th of last month, nine days ago. We know there has been a change of representation and it could not be assumed that that is a matter of choice by the applicants who are seeking to put – to use a disrespectful expression of my learned junior and instructing solicitor – a different jockey on the same horse. Rather, they have been forced to change solicitors. So when one looks at the overall picture it is the applicants sought these remedies in the first place, that is, the remedies of declarations and injunction. There is nothing new about that. It is not a new point. It was there all along, dealt with by Justice Bleby, but not dealt with by the Full Court.

Second, the delay cannot be assumed to be solely that of the first and second respondents and, thirdly, there has been a change of solicitors because someone has apparently declined or could no longer act. So that it would be an injustice if we, for example, ultimately win on the abuse of process point, but it is not taken into account on the application for special leave. Because the matter was not decided it might be determined on its own facts. But if we win that point, then this issue of prejudice, the major issue of prejudice, relied upon by the learned Chief Justice and agreed by Justice Duggan, falls away. It is entirely illusory.

That is why we say that the two matters must go together as they were originally in the same summons. It is not the applicant’s fault that the Full Court only dealt with one matter, that was just the way the court dealt with it. Justice Bleby did not have to make orders in relation to the alternative remedies because he granted the extension of time. The Full Court, however, made no order in relation to the alternative remedies and it chose to deal only with the matters of judicial review. That is not our doing, that is the court’s doing. On that basis, if the Court pleases, we seek adjournment of the special leave application so that the matter of abuse of process - - -

GLEESON CJ: Adjournment until?

MR QUICK: Until the matter is dealt with by Mr Justice Bleby to the point of finalisation and the disposal of any appeal.

GLEESON CJ: I am sorry, it is going to be necessary for you to formulate the order that you want us to make and we cannot just make an order adjourning the matter. We have to make an order adjourning the matter until a time or an event. What is the time or the event?

MR QUICK: Until such time as a judgment is given by Mr Justice Bleby, at first instance, in relation to the applications for injunctions and declarations and that matter, if it goes to appeal, is dealt with by the Full Court.

GLEESON CJ: So you want us to stand over this special leave application until that aspect of litigation concerning injunctions and declarations can be brought up to the High Court too? Is that the object of this?

MR QUICK: One aspect of the application for injunctions and declaration, the aspect of abuse of process.

GLEESON CJ: Yes, thank you. Mr Wells.

MR WELLS: Your Honours, with great respect, the applicant’s approbate and reprobate about the question of special leave, for something like a year now the applicants have asked the court, that is, the Supreme Court, to stand over a number of applications pending the hearing of the special leave application in this Court and now at the eleventh hour the applicants come to this Court and ask the Court to stand over the special leave application pending the determination of an application which has not yet been commenced.

There are a number of applications presently on foot which have been deferred. One of them is an application which Justice Bleby required very early on to apply to an earlier Full Court to revoke a declaration made by that Full Court in relation to litigation between the same parties over the same development application in which it was held that the development approval was valid and a declaration was made. That application has not been agitated.

There are other applications but what is intriguing, may it please the Court, is that none of the applications so far raise anything to do with my learned friend’s concern about the abuse of process. So, although there is a hearing fixed before Justice Bleby on I think the 24th of this month, we are not aware of an application that would deal with anything to do with the abuse of process or, for that matter, an application that would deal with the exercise of the power under rule 98.11 of the Supreme Court Rules.

GLEESON CJ: Do you say that there are other applications before the Supreme Court and that there was an application by your opponents to adjourn them pending the outcome of the special leave application in this Court?

MR WELLS: Yes.

GLEESON CJ: And what happened to those applications?

MR WELLS: They have been deferred.

GLEESON CJ: They have been deferred?

MR WELLS: Yes, they have been deferred and, indeed, your Honours, that is why the 24th of August date was fixed, because it was recognised as being the date which would be after the hearing of the special leave application and everything would then have to be brought to a head, whatever the applications were that were to be pursued. There are some applications but they have been on the books for some time and not agitated by the applicants and his Honour said, “Right, we have to deal with those. I am going to fix that date after the special leave application and you can then decide whether you are going to proceed with any of those applications or not”.

It has been said on more than one occasion in appearances before his Honour, will you defer this until the special leave application has been heard? This matter that is before this Court raises an issue about the extension of time and the exercise of a discretion with regard to the extension of time for leave to serve a summons for judicial review and, your Honours, it relates to the alleged invalidity of a development approval which commenced with necessary consents required for the approval as far back as January 2004. We are now almost three and a half years further on and it is now sought to further delay the matter.

Our respectful submission is, number one, that further delay should not be permitted. We do not have even the application. We do not even know what the application is that my learned friend wishes to proceed with. Our second ground of opposition is that, so far as we can tell from the written outline, the discerned purpose of the proposed adjournment is to seek a reopening of the appeal before the Full Court in order to ask the Full Court to exercise its powers under rule 98.11 of the Supreme Court Rules.

That is a rule your Honours will find set out in the application book at page 6 which says that on a hearing of a judicial review application, as an alternative to refusing judicial review, the Court can direct that certain parts of it, where an injunction or declaration is being sought rather than
prerogative process, proceed as in the ordinary jurisdiction. We have not got anywhere near that point and yet it is said, as we understand it, that that is what the applicants would want to do by way of reopening or seeking to reopen the appeal before the Full Court.

GLEESON CJ: All right, I think we understand your position. Thank you, Mr Wells.

MR WELLS: May it please the Court.

GLEESON CJ: Mr Quick, is it right that - - -

MR QUICK: I would join issue with some of the matters that have been raised, your Honour.

GLEESON CJ: I just wanted to raise one specific matter.

MR QUICK: I beg your pardon, your Honour.

GLEESON CJ: Is it the case that your side of the record has sought and obtained adjournments in the Supreme Court pending the outcome of this special leave application?

MR QUICK: Your Honour, I am unable to help the Court on that. May I explain why? My instructor has only been involved in the matter for a short time, about a month. He has not yet had the files in complete form from the previous solicitor. Counsel who was retained is no longer retained in the matter. We do not know even who attended on - - -

GLEESON CJ: Who benefits from delay in this matter?

MR QUICK: The public interest, if the Court pleases. There is a substantial point to be determined.

CALLINAN J: You are representing the public interest, is that what you say?

MR QUICK: No, your Honour, what I am saying is that the point that has to be determined by the Full Court - - -

CALLINAN J: Do you say that your client’s interests are identical of the public interest? Is that what you are saying?

MR QUICK: No, your Honour, what I am saying - - -

CALLINAN J: What is the relationship of your client’s interest to the public interest? Is there any coincidence between them at all?

MR QUICK: Partially only. The public interest that I refer to is the public interest involved in having a matter of general importance decided by this Court. That is what can profit, or that - - -

GLEESON CJ: What is happening to the development while this litigation is going on?

MR QUICK: Your Honour will see that there is some – that the present consent lasts for three years. It is now some 30 months have gone by, so there is six months left. But your Honour will also see - - -

GLEESON CJ: No, no, I said, what is happening to the development physically?

MR QUICK: They are building as fast as they can go, from what I can gather from Mr Walker’s affidavit.

GLEESON CJ: What did you say? I missed that, I am terribly sorry?

MR QUICK: I think that they are proceeding and Mr Walker’s affidavit has some photographs of how far the work has proceeded. The roof does not appear to be complete, there does not appear to be any second fittings going on, but it is hard to tell from the photographs.

GLEESON CJ: You are the interest resisting the development?

MR QUICK: Yes, your Honour, yes.

GLEESON CJ: So they are proceeding in a sense at their own risk if you are ultimately successful?

MR QUICK: Yes, your Honour.

GLEESON CJ: Yes.

MR QUICK: Your Honour, could I just refer to two matters that are not quite right in what my learned friend says? The abuse of process matter is raised first in the proposed grounds of appeal at paragraph 2.4 on page 53. The Full Court erred in that it held insofar as the first and second applicants pursued declarations and injunction proceedings challenging the building consent and the development approval, those proceedings were likely an abuse of process, so it is raised fairly and squarely there. On page 66 of the application book the second ground of resisting the application is that:

The judgment is not attended with sufficient doubt to warrant the intervention of this Court and it is not in the interests of justice to do so.

We say that in response to that argument, the doubt that arises in relation to the judgment arises by reason of the fact that the abuse of process point was not determined. Yet, the Full Court also, the majority decided that there would be prejudice by loss of certainty and that prejudice can only arrive if the abuse of process argument is decided against by the first and second applicants. So it is raised in opposition to that ground of resisting the application. There is no specific prejudice mentioned by the second respondent in relation to the holding over of this application and it should be noted that the first and second applicants have said that they will support an extension of the building approval if an application for that purpose is required by the council. May it please the Court, those are the arguments in response.

GLEESON CJ: Thank you, Mr Quick.

Far from being persuaded that the interests of justice require an adjournment of this special leave application we consider that it is in the interests of justice that the application should be heard and determined tomorrow, and we will adjourn now until 9.30 tomorrow morning.

AT 4.51 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 9 AUGUST 2007