Foody v Horewood & Ors [2007] HCATrans 438 (22 August 2007)

Last Updated: 4 September 2007

[2007] HCATrans 438

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M77 of 2007

B e t w e e n -

ANDREW EMMETT FOODY

Applicant

and

TIMOTHY HOREWOOD

First Respondent

EDWARD HORE

Second Respondent

MUSASHI PTY LTD

Third Respondent

Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 22 AUGUST 2007, AT 9.30 AM

Copyright in the High Court of Australia

MR A.E. FOODY appeared in person.

MR S.R. HORGAN: If your Honour pleases, I appear for the respondents. (instructed by Rigby Cooke Lawyers)

HIS HONOUR: Now, the application is for an extension of time to file a summary of argument. Is that right, Mr Foody?

MR FOODY: That is correct, your Honour.

HIS HONOUR: Yes. What is the attitude of the respondents, Mr Horgan?

MR HORGAN: Your Honour, we offered an extension to 7 September. Mr Foody did not accept that, but we have now provided him with a minute of consent to 17 September hoping that that would be satisfactory. Mr Foody also has an alternative application, paragraph 7 of his affidavit sworn 21 August, seeking for this Court to vary the orders of the Court of Appeal, but your Honour would not do that because there is an application pending before the Court of Appeal for that relief and that is the appropriate place. That is the confidentiality order, your Honour.

HIS HONOUR: Yes. Well, now, Mr Foody, what exactly is it that you want me to do today?

MR FOODY: I would like an extension.

HIS HONOUR: Until?

MR FOODY: The 17th is a Monday, the 21st on a Friday would be better. It would allow me more time to get in front of experts. If, as Mr Horgan says, you are not able to vary the confidentiality orders then I will have to wait until 29 August for that, but I would very much appreciate if the Court - if you could find it in your powers to vary those orders.

HIS HONOUR: I do not think it is a matter on which I should embark, Mr Foody, given that it is pending in the Court of Appeal, but look I would say only this, that you in this Court would seek to demonstrate that the Court of Appeal is wrong. You would seek to demonstrate, I assume, that the Court of Appeal was wrong in a number of respects, including the respect that you did not have access to various confidential material. Is that not the position?

MR FOODY: That is correct, your Honour. That is all after the fact that - - -

HIS HONOUR: I understand that, but it is then not immediately apparent to me, and we should not I think spend time debating it, but it is not immediately apparent to me at all what advantage you would get by seeing what you were prohibited from seeing in the Court of Appeal. Our jurisdiction is to make such order as the Court of Appeal should have made, and we act on the record of the Court of Appeal. But, look, these are matters that are perhaps affected by considerations that are not present to my mind. Let us focus on the date, and forgive me if I say, let us get on with it. 17 September is the Monday, is it?

MR FOODY: Yes, it is.

HIS HONOUR: You have the joys of the weekend before, Mr Foody, and we can always expand the work to fill the time available. I know that all too well from personal experience. If I say 17 September at 4.00 pm?

MR FOODY: Thank you, your Honour.

HIS HONOUR: And the costs of this application to be costs in the application for leave, Mr Horgan?

MR HORGAN: Yes, your Honour.

HIS HONOUR: Extend the time by which the applicant is to file and serve his summary of argument in support of his application for special leave to 4.00 pm, 17 September 2007. Costs of today will be costs in the application for special leave. Is there anything else that I need do in the matter?

MR HORGAN: If your Honour pleases.

HIS HONOUR: Very well.

AT 9.35 AM THE MATTER WAS CONCLUDED