Agricultural and Rural Finance Pty Limited v Gardiner & Anor [2009] HCATrans 12 (12 February 2009)

Last Updated: 12 February 2009

[2009] HCATrans 012

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S180 of 2008

B e t w e e n -

AGRICULTURAL AND RURAL FINANCE PTY LIMITED

Appellant

and

BRUCE WALTER GARDINER

First respondent

OCEANIA AGRICULTURE PTY LIMITED

Second respondent

GUMMOW J
HAYNE J
HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 12 FEBRUARY 2009, AT 9.31 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, Q.C: If the Court pleases, I appear with my learned friend, MR C.J. BEVAN, for the appellant in the proceedings, which is the applicant in the summons for costs filed 15 December 2008, and a respondent to each of the other two summonses. (instructed by Evangelos Patakas & Associates)

MR R.M. SMITH, S.C: I appear for the first respondent in the proceedings, the respondent to each of the applications by OAL and ARF, and an applicant in the summons filed by my client of 2 February this year. (instructed by Clayton Utz Lawyers)

MR M.J. WINDSOR, S.C: If the Court pleases, I appear with my learned friend, MR W.V. McMANUS, for the second respondent. The second respondent is the respondent on the application by both Mr Jackson’s client and my learned friend, Mr Smith’s, client. I am also appearing on behalf of the applicant in the summons bearing a file date stamped 10 February 2009. (instructed by Colin Biggers & Paisley)

GUMMOW J: Thank you. The Court has before it now three summonses: one filed by Mr Smith’s client on 2 February, one filed by Mr Jackson’s client on 15 December and one filed by Mr Windsor’s client on 10 February. We will consider first Mr Smith’s motion of summons. We also received detailed written submissions which we have digested. Now, is there anything you want to say in furtherance of the written submissions?

MR SMITH: Simply this. As it would be obvious from the submissions in a sense the summons has been filed out of a sense of neurotic caution. It is pretty clear that any file - - -

GUMMOW J: Neurotic caution?

MR SMITH: Neurotic caution, yes.

HAYNE J: That will make an interesting catchword, I think, in the reasons.

MR SMITH: Well, we wrote a letter saying we thought it was pretty obvious that any farmer who paid on time should have an indemnity. The order dismissing the cross-claim by this Court is a verdict for the cross-defendants. Now, on a neurotic view of that, perhaps it might said that that has an effect on other farmers who paid on time. Our short point is really this, that that was the order made by the Chief Judge at a time when he held that there was no indemnity available to anyone. The Court of Appeal, in effect, reversed that order and said the appropriate order was that
the cross-claim should be dismissed. Our short point is that is perhaps the proper order. It gives effect to this Court’s, in effect, acceptance that my client was entitled to indemnity on the third loan; that is the loan for which he paid punctually.

HEYDON J: Does anything substantive turn on it?

MR SMITH: Well, only the possibility that someone might want to say, well verdict on a cross-claim is inconsistent with an entitlement to an indemnity because my client sought an indemnity in the cross-claim in respect of the four loans from OAL. Now, if there were verdict and judgment – there is not judgment, but it might be said that a judgment on a cross-claim is inconsistent with that concept. That is the only point. We asked, in effect, in correspondence are you going to take that point and we brought the summons out of that caution. That is all I want to say.

GUMMOW J: Yes. We do not need to hear the other parties on that summons. The other two summonses by Mr Jackson’s client and Mr Windsor’s client seem to march together. Do either of you wish to add anything to what we have seen in the written submissions?

MR JACKSON: Your Honour, may I just say these things about it, and very shortly. Your Honours have seen the written submissions. The particular matters to which I wish to draw attention are the submissions – the particular matter to which I wish to draw attention can be seen in our reply submissions in paragraphs 7 and following where we go through in more detail the course of the proceedings and the success of the parties on the various issues.

Your Honours, what we would say is that the failure of Mr Gardiner on the cross-claim was a substantive failure and the position essentially is as we set out in paragraph 25 of our reply submissions. What we would say is that an order that OAL have no costs of the proceedings in the courts below was, with respect, inappropriate. At the very worst, the costs order should have given it all but a small percentage of the costs.

Of course, the working out of amounts is a different matter, a matter for whatever form of calculation and estimation of the costs in due course takes place. Your Honours, could we say, it was made apparent in this Court that an order in respect of OAL’s costs in the courts below was being sought and no objection was taken at any time in relation to the making of such an order. Those are our submissions.

GUMMOW J: Is there anything you want to say, Mr Windsor, to supplement what Mr Jackson has just said?

MR WINDSOR: No, your Honour, except to this extent. To the extent that Mr Smith’s client says that this is an application that should have been instituted by OAL, OAL says that if that be a failure which is so definitive to OAL’s position, then OAL would make an application here today for special leave on that limited point. But our position has always been, your Honour, that the costs issue has been ventilated in the draft notice of appeal to this Court, in the notice of appeal to the Court, to the submissions made by OAL and also by ARF to this Court and there has been no contrary submissions made by Mr Smith’s client at any time in relation to that costs issue, except to say that if his client had been successful on the application to this Court, then he would be entitled to costs, but nothing otherwise said in relation my client’s costs.

GUMMOW J: Thank you. We do not need to hear from you, Mr Smith. We will take a short adjournment.

AT 9.39 AM SHORT ADJOURMENT

UPON RESUMING AT 9.44 AM:

GUMMOW J: With respect to the summons by the first respondent, Mr Gardiner, which was filed on 2 February 2009, the conclusion of the Court is as follows. Having regard to the matters of history that are referred to in paragraph 3 of the written submissions by the appellant which were filed on 10 February 2009, no variation is sought by the first respondent as necessary to provide further clarification. The summons is dismissed. There will be no orders to costs of the summons.

With respect to the summonses by the appellant, Agricultural and Rural Finance Pty Limited, filed 15 December 2008 and the summons by the second respondent, Oceania Agriculture Pty Limited, filed on 10 February 2009, the conclusions of the Court are as follows. With respect to each summons the Court accepts the submissions by the first respondent, particularly those in paragraphs 11 to 28 of his written submissions filed on 2 February 2008. The Court makes such orders as are necessary for the summons by the second respondent to be listed today but each summons is dismissed and the applicant on each summons is to pay the costs of the first respondent.

The Court will now adjourn to reconstitute at 10.00 am.

AT 9.46 AM THE MATTER WAS CONCLUDED