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High Court of Australia Transcripts |
Last Updated: 7 November 2014
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S137 of 2014
B e t w e e n -
OPES PRIME STOCKBROKING LTD (IN LIQUIDATION) (SCHEME ADMINISTRATORS APPOINTED) (ACN 086 294 028)
First Applicant
OPES PRIME GROUP LIMITED (IN LIQUIDATION) (SCHEME ADMINISTRATORS APPOINTED) (ACN 120 372 223)
Second Applicant
and
JULIAN ALEXANDER JOHN SMITH
First Respondent
ALUN PETER STEVENS
Second Respondent
PETER JOSEPH GILLOOLY
Third Respondent
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
FROM MELBOURNE BY VIDEO LINK TO SYDNEY
ON THURSDAY, 6 NOVEMBER 2014, AT 9.59 AM
Copyright in the High Court of Australia
____________________
MR J.A. REDWOOD: If the Court pleases, I appear for the applicants, and I am led by Mr Walker in this matter. (instructed by King & Wood Mallesons)
MR C.L. LENEHAN: May it please the Court, I appear for the second and third respondents. (instructed by Norton Gledhill and K & L Gates)
MR S.D. HAY: If your Honour pleases, I appear for QBE. (instructed by Wotton & Kearney)
HER HONOUR: Thank you. I do understand there is no opposition to the removal of the first respondent and no opposition to the joinder of QBE.
MR REDWOOD: Your Honour, I understand – I think I overstated the position in our submissions - apparently the position is that there is no opposition, but apparently there is a distinction between that and not consenting, but that is what I have been informed. I am not sure of the practical difference, but perhaps my learned friend might address your Honour on that.
HER HONOUR: Well, there is no opposition so the orders can be made, but they should not recite that they have been made by consent. Is that the position?
MR REDWOOD: Yes.
HER HONOUR: Yes, very well.
MR LENEHAN: That is correct, your Honour.
MR HAY: That is so, your Honour.
HER HONOUR: Thank you.
MR REDWOOD: Thank you, your Honour.
HER HONOUR: So that leaves the third substantive order which was sought on your client’s summons, and that is to adjourn the application for the hearing of special leave from Friday next week to a date in March or some other date?
MR REDWOOD: Yes, that is correct, your Honour. Your Honour would have had an opportunity to review the summons and affidavit of Ms Kinsey.
HER HONOUR: Yes. In relation to the affidavit of Ms Kinsey – I have to admit, I do not perfectly understand what is happening in Victoria at the moment.
MR REDWOOD: Yes.
HER HONOUR: Let me say why. If one goes to the exhibit numbered SJK-6 to Ms Kinsey’s affidavit, that is the originating motion between the parties which initiated proceedings before his Honour Justice Robson, as I understand it.
MR REDWOOD: That is correct, your Honour.
HER HONOUR: That is correct. Now, if one looks at paragraph 4 of the orders sought in relation to that application, the fourth order is that leave to appeal to the Court of Appeal be granted from the order of the Honourable Justice Ball dismissing the plaintiffs’ application for leave under section 6(4) to enforce their charge. Now, you recollect there were two notices of motion before his Honour in New South Wales - yours to have a 6(4) joinder – if I can speak briefly – and Mr Stevens’ notice of motion which was to transfer the proceedings.
MR REDWOOD: That is correct, your Honour.
HER HONOUR: Now, this paragraph here seems to indicate that your clients were proceeding, or proposing to proceed, in the Court of Appeal of Victoria because of the transfer in relation to an appeal from the orders made on your notices of motion which – but maybe that has not happened. I just do not know. All I know is that there are references made to the submissions to what are said to be declaratory orders sought in the Victorian Supreme Court. They sought at first instance before - is that a fresh application?
MR REDWOOD: Yes, your Honour, it is a fresh application - - -
HER HONOUR: Very well.
MR REDWOOD: - - - and it arises from – it is confusing, your Honour. It arises from the order cross-vesting the proceeding which has given rise to what we say is the principal dispute that is the subject matter in this special leave application, that is, the effect of the cross-vesting on the continuing existence of the charge under section 6.
HER HONOUR: Now, if we may look for a moment – this is just to sort out some aspects of the matters which might need some clarification – if one looks for a moment at the application book for special leave, page 28, and if you look at paragraph 5 of your summary of argument:
Consistent with . . . Schultz, this Court’s appellate jurisdiction is engaged by s 73(ii) of the Constitution in respect of the order cross-vesting the Proceeding.
So I understand that is your answer to any competency objection based on section 13 of the relevant cross-vesting legislation.
MR REDWOOD: Yes, your Honour.
HER HONOUR: Then you go on:
By reason of the two orders being so intertwined –
so that is cross-vesting and what I will call the section 6(4) order - - -
MR REDWOOD: Precisely, your Honour.
HER HONOUR:
the engagement of this Court’s constitutionally entrenched appellate jurisdiction is uniquely apt to resolve all the matters in dispute.
So you seek to join in the section 6(4) point?
MR REDWOOD: Precisely, your Honour.
HER HONOUR: Hooking it into what I will call the Schultz point in relation to cross-vesting, but at the same time you are making a fresh application in relation to section 6(4) before Justice Robson in the Victorian Supreme Court?
MR REDWOOD: Yes, your Honour, but - - -
HER HONOUR: Are you not proceeding with an application for leave to appeal to the Court of Appeal from the decision of Justice Ball in relation to section 6(4)?
MR REDWOOD: That is right. Your Honour, we are no longer proceeding with that aspect of the originating motion.
HER HONOUR: Yes.
MR REDWOOD: That relief was sought before the special leave was filed in circumstances where your Honour may appreciate that we were in rather difficult jurisdictional terrain and we were trying to ascertain the most sensible way forward, but that is no longer relief that is being sought in the - - -
HER HONOUR: Well, I suppose one conundrum in relation to the special leave application is your summary of argument, paragraphs 39 to 43, is focusing on the ability of the Supreme Court of Victoria to apply section 6(4), as I understand it.
MR REDWOOD: Precisely – I mean, it is - - -
HER HONOUR: Well, there is a conundrum to this extent, that if you are right about that, that argument favours a transfer.
MR REDWOOD: It does, your Honour. That is precisely the point we emphasised before Justice Ball. We emphasised that we did not oppose a transfer, provided that his Honour concluded that section 6 could continue to travel. That, in fact, your Honour, was the only issue in dispute in respect of the cross-vesting application.
HER HONOUR: Well, his Honour made no findings about that, though, of any concluded kind, did he?
MR REDWOOD: No, and that we say, your Honour, is the vice.
HER HONOUR: In other words, you could lose the appeal on a sort of House v The King type of analysis, even if you have an argument that is not strictly speaking a discretion, but the point would still be open in the Victorian Supreme Court, would it not?
MR REDWOOD: It would, your Honour. If this special leave were refused or discontinued it would be open to us, of course, to continue to agitate that issue in the Supreme Court of Victoria, and the Supreme Court - - -
HER HONOUR: That would go up the appellate hierarchy?
MR REDWOOD: It would, your Honour.
HER HONOUR: And ultimately come to this Court with the benefit of an intermediate appellate court’s reasons?
MR REDWOOD: Well, that is precisely our point, your Honour, that we are perfectly content to proceed next week and we are confident that there is clearly a dispute between the parties that is apt for quelling by this Court, but we think it would assist the Court to have the benefit of a decision of the Supreme Court of Victoria on what is really the same issue and, moreover, it would assist the Court not only in determining whether special leave ought be granted but the appeal itself. So the declaratory proceeding in this special leave - - -
HER HONOUR: Well, the other way of looking at it, I suppose, is that grounds – or special leave questions (C) and (E) are, on one view, stand-alone grounds in relation to cross-vesting, and grounds (A), (B) and (D) may all be overtaken by the Victorian Supreme Court’s decision.
MR REDWOOD: That is true, your Honour.
HER HONOUR: The relief you are seeking if leave is granted, as I understand it, is to unwind the transfer orders.
MR REDWOOD: Yes, your Honour, if this Court were to conclude that the effect of the cross-vesting were to expunge the charge. If this Court concludes that – if this Court agrees with our submissions that either by reason of a proper interpretation of Chubb or through a proper application of section 11 of the cross-vesting scheme the charge has travelled then there is no need to unwind it because we are content that we have what is important to us, but if this Court concluded the effect of the cross-vesting order is that the charge has been annihilated we would say that the matter needs to be remitted to Justice Ball for a proper determination in line with this Court’s reasoning. So we would say that that factor alone would be decisive against the cross-vesting transfer.
HER HONOUR: Well, this is not the occasion to determine the merits of the special leave application, but Schultz might be a problem in that respect, might it not? You are not seeking to have Schultz overruled, are you?
MR REDWOOD: No, we are seeking to have Schultz - - -
HER HONOUR: Distinguished.
MR REDWOOD: - - - distinguished and explicated, your Honour. We say that there are aspects of the reasoning that would benefit greatly from further elucidation by this Court and that Schultz is being applied in this circumstance to a somewhat unusual situation, particularly bearing in mind that this Court has only - of course, has not addressed this difficult and complicated regime but a regime of enormous practical importance. It has only addressed it once and has not addressed it for over 10 years. We think that Schultz, in this case, is a decision that would benefit from further explication by this Court.
HER HONOUR: Well, in Schultz, of course, the primary judge declined to transfer.
MR REDWOOD: Yes. Your Honour, we are dealing – of course, it would have not gone unnoticed to your Honour that we are dealing with a merger of two very awkward jurisdictional regimes. In one sense, it is a perfect storm combining the cross-vesting scheme with section 6, but it is a matter of – and I do not want this to turn into a de facto argument of the special leave, but it is something of tremendous importance in civil litigation at the moment in this country, both section 6 and the cross-vesting scheme, so how the two intersect is something that we have emphasised in our submissions as something of unique importance.
So, your Honour, the reasons we indicate that the preferred course, not the necessary course, is for an adjournment is precisely because, as your Honour has indicated, this Court would benefit from a decision of the Supreme Court of Victoria on what is the same judiciable controversy, the effect of the cross-vesting on the charge, and it would also crystallise the issues in dispute more sharply in this sense, your Honour. If the Supreme Court of Victoria, of course subject to appeal, were to conclude that – were to agree with us that the order cross-vesting has not annihilated the charge, then the subject matter of this special leave application is gone, we are satisfied.
HER HONOUR: But the second and third respondents have said against you in that context that decision then is subject to all the contingencies of appeal, so in a sense the special leave application is going off into never-never land. You are asking for an adjournment till March, but that is only on one scenario.
MR REDWOOD: It is, your Honour, but on the other scenario the special leave is discontinued – if our opponents’ position prevails, we will appeal, and there is a degree of inevitability that we will ultimately appeal to this Court so we will end up back before this Court, essentially ventilating the same issue again.
HER HONOUR: If you are right, the appeal in this Court becomes irrelevant - that if you are right all the way up.
MR REDWOOD: That is correct, your Honour.
HER HONOUR: If you are wrong, that rather takes the heat out of your appeal in relation to the cross-vesting order, does it not? Your complaint about the cross-vesting is, as I understood it anyway, that Justice Ball should have taken into account – what are you saying – a procedural advantage in New South Wales?
MR REDWOOD: Well, we say it is more than a procedural advantage, your Honour, but - - -
HER HONOUR: Are you characterising it as a substantive right or something?
MR REDWOOD: It is sui generis, your Honour; it has elements of both.
HER HONOUR: Yes.
MR REDWOOD: There is the joinder aspect which is procedural, there is the charge aspect that is clearly substantive, so it is not apt for falling neatly into either category. It is truly sui generis. But we say that if before the Supreme Court of Victoria, the Supreme Court of Victoria declines our first relief and agrees with our opponents that the effect of the cross-vesting was to annihilate the charge, that that would necessarily mean that the precise concern the subject matter of this special leave application has been engaged and Justice Ball’s failure to address that issue then becomes uniquely ripe.
Now, the difficulty, your Honour, we have faced in doing our best to address how to case manage this issue is that if, of course, we did not seek special leave to this Court and the Supreme Court of Victoria said the effect of the cross-vesting order is to annihilate the charge, and our rights of appeal in respect of that order have lapsed before this Court, then we face the conundrum that we are potentially unable to unwind the cross-vesting order and our charge is then, on one view at least, irreparably destroyed.
HER HONOUR: Well, in a sense that is grounds (C) and (E) of your appeal which I will call, if you like – this is just for the sake of convenience – the stand-alone grounds in relation to the cross-vesting decision.
MR REDWOOD: Certainly, your Honour, they are absolutely stand-alone grounds.
HER HONOUR: That would point - possibly I would think, together with looking at the relief sought, which is to unwind the cross-vesting orders – that would point to a need for expedition in this Court rather than a need for putting off till a very uncertain time, because otherwise the Victorian Supreme Court will be put to utilisation of its resources in circumstances when you then want to possibly reagitate these what I will call stand-alone grounds in relation to the cross-vesting order made by Justice Ball. I suppose you accept that because you do say at the end of your submissions it is a preference only to adjourn, but you accept that it may be appropriate to go ahead, which I take to be an indication to me that you are not identifying a prejudice in relation to not adjourning - - -
MR REDWOOD: No, your Honour. We concede that point. We are not identifying a prejudice. We are respectfully, your Honour, trying to offer a sensible way of case managing the two proceedings in a way that will most assist the Court and most crisply identify the issues in dispute for resolution. I fully accept, your Honour, the force of the observation that it is undesirable for the proceeding in the Supreme Court of Victoria to go some way down the path - - -
HER HONOUR: With hanging over the whole set of proceedings the idea that you will then bring back on a special leave application where the relief on the appeal is to unwind the transfer orders.
MR REDWOOD: Precisely, your Honour. That is certainly a relevant consideration, and I fully accept that that needs to be weighed against the competing considerations in favour of a deferral of the special leave until the benefit of a decision from the Supreme Court of Victoria. I mean, I can say, your Honour, that the applicants have been conscious of that tension and have sought to sensibly progress the proceeding in the Supreme Court of Victoria, but not in such a way that it involves the proceeding becoming a – if I can refer to it as too deeply engaged – so we are at a pleading stage at the moment - - -
HER HONOUR: Well, it was impossible not to notice that counsel’s unavailability had some impact in relation to all your efforts to have this matter brought on quickly and, of course, that may be a contingency which applies in relation to any appeals from any decision made on the fresh application – what I will call the fresh section 6(4) application.
MR REDWOOD: It is true, your Honour. I cannot deny that there is a possibility that if – of course, it may be open to – it would take unique circumstances, but it may be possible to seek a direct appeal to this Court in circumstances, but I accept that is an exceptional course. But if we have to go through the appellate hierarchy, it is possible that we could be back before this Court in 12 months’ time with the proceeding substantially more progressed in the Supreme Court of Victoria, and that - - -
HER HONOUR: It is not a happy thought really.
MR REDWOOD: Nothing we have said here, your Honour, should suggest that we are not anxious to have this issue resolved as expeditiously as possible.
HER HONOUR: Well, it may be the fact is, as with many things in life, there is no perfect solution.
MR REDWOOD: No, and, your Honour, this section has tortured me for quite some time, and I can say that if ever an observation were apt it is for this particular statutory regime, there is simply no perfect solution. So, your Honour, I really cannot – I could - - -
HER HONOUR: Well, I think your written submissions have been most responsible, Mr Redwood, in the sense that you have indicated the only ground for an adjournment is a matter of preference.
MR REDWOOD: That is correct, your Honour, and I could labour through the affidavit and engage in some sort of point scoring on sort of precisely what the chronology is, but I do not think that will ultimately be of assistance to your Honour.
HER HONOUR: Well, the most important point perhaps which emerges from the affidavit is that the application to adjourn arose out of the respondents’ submissions in relation to the application for special leave to appeal.
MR REDWOOD: Yes, your Honour, precisely, and moreover, it was unclear to us precisely what their position was in light of their submissions. We wrote to them, you will see in the affidavit material, and they confirmed the matters that were in dispute. In light of that, we then reapproached Justice Robson and sought a hearing before the hearing of the special leave application. As you will see from the affidavit material, we assiduously advanced that course. By reason of the regrettable unavailability of dates from the Supreme Court of Victoria and some difficulties relating to the availability of QBE’s counsel that was not able to be achieved.
So the only minor gripe I would mention, your Honour, and I do not want to labour the point, is the sort of faint suggestion that there has been a sort of shifting of ground and that we have waited till the very last minute. The material of Ms Kinsey emphasised that we were very conscious of not inconveniencing this Court and coming to the Court with an application for adjournment only when we knew (a) the date of the special leave, (b) whether the declaratory proceeding could be heard sufficiently in advance, and (c) what the respondents’ position was.
So we accept, your Honour, that it is somewhat undesirable that we are here sort of eight days before the special leave, but we have really tried our best to act in a way that is responsible in these circumstances.
HER HONOUR: Well, it gets back to the conundrum, I think, which is that the grounds (A), (B) and (D) are subject to the argument in paragraph 34 which occasioned the idea of the need to adjourn, whereas grounds (C) and (E), which I have called for convenience the stand-alone grounds on the cross-vesting orders made by Justice Ball, and the relief sought, point very much in the direction of the need for some expedition and I think you have accepted that.
MR REDWOOD: Yes, I respectfully accept that, your Honour. I mean, I suppose, of course, what we want to avoid is a special leave going ahead and it being suggested that it is not a suitable vehicle by reason of the sort of considerations that the respondents have raised, in which case we are going to be back in – we inevitably are going to be back in the territory of a delay until such time as the Supreme Court of Victoria has determined the effect of the cross-vesting order.
HER HONOUR: Well, that really reflects inevitably, does it not, the fact that grounds (A), (B) and (D) may be premature?
MR REDWOOD: On the leave issue, yes, your Honour, but not on the anterior issue of - - -
HER HONOUR: Well, that issue does not really touch grounds (C) and (E).
MR REDWOOD: No, that is right, your Honour.
HER HONOUR: But, I mean, you have chosen to, in paragraph 5 - as I pointed out earlier – you have chosen to hook in an appeal in relation to section 6(4) with the cross-vesting appeal.
MR REDWOOD: Your Honour, we did that because - you will see from Justice Ball’s reasons that – and as explained in our submissions, there is a degree of intersection, at least insofar as if, as we say, leave had been granted and QBE joined that would have been a material consideration bearing upon cross-vesting. But I should say, your Honour, that while we think it would be preferable to deal with the leave question, the matter we really care about and that would be sufficient for us for the purpose of special leave is the question of the effect of the cross-vesting order. If we have the charge we would say that we can then go back and seek leave again - - -
HER HONOUR: But that only gets into this Court through the Schultz route.
MR REDWOOD: Yes, that is right, your Honour. I fully accept that, your Honour.
HER HONOUR: That means perhaps you have given artificial prominence to the cross-vesting appeal. In other words, you might lose the cross-vesting appeal if special leave were granted, as I pointed out to you before, on something like a House v The King analysis. In other words, Justice Ball did not err in taking into account to the extent that he did the relevant consideration of the section 6(4) position in New South Wales and whether or not there was extraterritorial effect.
MR REDWOOD: Your Honour, we would say, with some force, that it is plainly not a simple House v King exercise of discretion. We would say that there - - -
HER HONOUR: I do understand that because that was argued, obviously, in Schultz.
MR REDWOOD: Yes. We would say that really there could be no starker issue of principle in respect of the exercise of the cross-vesting jurisdiction and the issues that we say were germane to the proper exercise of it here. So, of course, the Court may disagree with us and what your Honour says would follow, but we would vigorously resist that this is House v King territory, with respect, your Honour.
HER HONOUR: Yes. Does Justice Ball do any more than - looking now at application book 12, paragraph 23 – he says:
This is not a case where the plaintiff is seeking to take advantage of some substantive or procedural right attaching to the proceedings, but rather a case where it is seeking to retain an independent right –
Now, that is your argument, I take it?
MR REDWOOD: Yes, so he is here reciting, your Honour, our argument.
HER HONOUR: Your argument about Chubb, or deriving from Chubb?
MR REDWOOD: Yes, your Honour.
HER HONOUR:
that would or may be lost if the proceeding is transferred.
He then in paragraph 25 – on one view, he applied Schultz, and then in paragraph 26, even if he does something different from what was done in Schultz and treats section 6 as a relevant consideration, he takes the view that “those advantages are outweighed by” – to use old-fashioned language, Lord Goff’s – the connecting factors with Victoria.
MR REDWOOD: Precisely, your Honour, and that, as I apprehend it, is our opponents’ - what they now refer to as their principal submission, that on the assumptions adopted by Justice Ball he advanced a course that was most favourable to us so, therefore, it does not make any difference. We say in paragraphs 23 to 25 of our reply that, with the greatest respect, whilst that is a very clever argument it is ultimately sheer sophistry.
We say that his Honour – you cannot divorce 26 from what his Honour first says in 25 as to the – what we say is, of course, the incorrect application of Schultz, that it is not a relevant consideration, but, in any event, we say that the weighing exercise that his Honour engaged in in 26 was manifestly wrong because if the effect of cross-vesting were to annihilate a proprietary right, that is not a matter of weight, that is a decisive consideration against cross-vesting.
In any event, we say, your Honour, that the value or importance attached to the charge by Justice Ball, for the reasons we indicated in our submissions, plainly, in any event, attached insufficient weight to the significance of that charge. In this sense, your Honour, because what - - -
HER HONOUR: But your section 11 argument under the cross-vesting legislation would overcome that. Is that right?
MR REDWOOD: Yes, that is right, your Honour. Essentially, what his Honour did was fasten, if you like, on his Honour’s view, the effect of the charge at that point in time, and assume that the charge at some future point in time could never have any application that was of value, and we say that that is incorrect as a matter of principle, and it is the nature of a charge, both this charge and generally, that it will always have a prophylactic operation and circumstances may arise where the charge is of benefit.
For instance, as we say, were, for example, the insured in the course of the trial to deny indemnity, the fact that we have the charge would enable us to join them. There is, of course - your Honour would be aware of this, debate as to the advancement of defence costs with Chubb having adopted a
particular position and the Supreme Court of New Zealand having adopted a contrary position, and those are matters that are of considerable importance to my client. So, in brief compass, and again without attempting to argue the special leave here, now, those are our essential responses to that.
HER HONOUR: Yes. Thank you, Mr Redwood. Mr Lenehan.
MR LENEHAN: Your Honour, in light of what has passed between my friend and your Honour, I can be brief. It seems that the applicants essentially say, boiling it down to this, if the Victorian Supreme Court is against them, this matter will become uniquely ripe – the special leave application will become uniquely ripe. That must be wrong because that result has already been assumed by Justice Ball, and his Honour assumed that in the very paragraph that your Honour just discussed with my friend in paragraph 23, and as my friend accepted, that records the submissions made by the applicants regarding cross-vesting and, essentially, what is said there is that an issue relevant to the interests of justice is that the applicants may lose the benefit of the charge.
In our written submissions on the summons we have also referred your Honour to the affidavit of Ms Kinsey and SJK-3 which extracts the submissions of QBE. I do not need to take your Honour to that, but you can see there that the very same submission is made by QBE. It was a rare moment in these proceedings of joyous, furious agreement. That leads to this, your Honour; there was no controversy below before Justice Ball as to that issue.
Fundamentally, that is the point we seek to make in our summary of argument at paragraph 34, which is what seems to have attracted the excitement on the part of the applicants and this application. But if that is right, and there was no controversy, what the Victorian Supreme Court says about the question that my friend says should have been answered by Justice Ball that was instead the subject of the assumption will not change things one way or the other. It will have no bearing on it; it will not make the matter any riper. Nothing will change.
All of that may indicate, as your Honour perhaps suggested to my friend, that questions (A), (B) and (D) may be premature. It may be that questions (C) and (E) stand alone but, again, none of that could be relevant to this adjournment application. I would adopt what your Honour said in terms of the interest in this matter being expedited, in fact, rather than delayed.
Insofar as it is also seemingly said that this Court may be saved some time in terms of perhaps not having two applications but only having to deal with one special leave application, we would adopt what your Honour says
regarding the contingencies that seem to surround that and that seemed to be quite an uncertain prospect and not something that would attract a grant of an adjournment.
We have referred in our submissions on the summons to a quite different proceedings in Cheung which was considered by both Justice Kirby and Chief Justice Gleeson. Of course, in that case one had a pending decision of an intermediate Court of Appeal which seemed almost inevitably likely to either lead to consolidation or, alternatively, abandonment of the first special leave application. That is quite a different case, it does not apply here.
Unless your Honour has any further questions for me, those are my submissions. I should just correct one point though, your Honour. I am instructed that we do seek our costs. In my submissions on the summons I misspoke and said that we confined that to the adjournment application.
HER HONOUR: Yes, you did.
MR LENEHAN: I am instructed that we seek costs for the costs of the summons, to the extent that makes any difference.
HER HONOUR: Yes, I see. Well, costs in relation to the matters which were the subject of agreement - if I can put it that way – I know you do not want to use the words “by consent” – must be insignificant compared to the costs of the contested aspect of the summons.
MR LENEHAN: Yes, your Honour, I would accept that.
HER HONOUR: Mr Hay, do you wish to add to your written submissions?
MR HAY: No, your Honour. The only thing is to outline to the Court that QBE does not seek an adjournment, does not seek to put any written submissions in now that it will be joined by your Honour’s order, and it may make some oral submissions on the special leave hearing, depending on what flows. The only thing that we would say is just perhaps for emphasis, your Honour, is that things, it is respectfully submitted, should be dealt with as they are rather than trying to guess about what contingencies might flow from any future decisions of the Supreme Court and that certainty is what my client seeks. Thank you, your Honour.
HER HONOUR: Yes, Mr Redwood, anything in reply?
MR REDWOOD: Very briefly, your Honour. There is a curiosity about the respondents’ position because on the one hand at paragraph 8 they
emphasise, of course, that the very vice that we complain of, that Justice Ball made no decision as to whether any rights would in fact be extinguished, then they seek to rely upon the assumptions made by Justice Ball which I have previously addressed your Honour on, and we say we are otherwise deeply flawed.
Your Honour, I do not think I can say any more in relation to costs. We would say that by reason of the first two orders sought, a hearing would have been necessary anyway to deal with Mr Smith and that we have otherwise taken a responsible course to suggest an approach that will be most efficient and desirable to this Court and the parties and in those circumstances we would resist the costs order. If your Honour pleases.
HER HONOUR: Yes, thank you. If the parties will just give me a moment.
On a summons dated 31 October 2014, the applicants for special leave in this proceeding, S137 of 2014, seek three substantive orders, the first two of which are not opposed. The first two orders are that a party named as a respondent be removed and that QBE Insurance (Australia) Limited be joined as a respondent to the application for special leave to appeal. The third order sought, which is opposed, is to adjourn the hearing of the application for special leave to appeal from Friday, 14 November next until March 2015 or thereabouts.
The application for special leave is concerned with separate orders made by the Supreme Court of New South Wales (Ball J): (1) refusing leave to the applicants to enforce their charge under section 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW); and (2) transferring the proceedings instituted in New South Wales to Victoria pursuant to section 5(2) of the uniform Jurisdiction of Courts (Cross-vesting) Act 1987 (“the cross-vesting scheme”).
The applicants’ draft notice of appeal shows that the orders sought on any appeal seek to unwind or vary the orders made under the cross-vesting scheme. Submissions today made it clear that the only reason for seeking to adjourn the application for special leave is that the applicants wish to abide the outcome of a fresh application in the Supreme Court of Victoria to obtain orders pursuant to section 6(4).
Special leave questions (A), (B) and (D) tend to support the applicants’ application to adjourn the forthcoming application, provided always that there was a real controversy before Ball J concerning the interpretation of section 6(4). In contrast, special leave questions (C) and (E) and the relief sought in the draft notice of appeal would support dealing with the application for special leave promptly.
It was stated in the applicants’ submissions that the applicants’ desire to adjourn is one of preference only, meaning no prejudice is identified which would follow from the refusal to adjourn. The application to adjourn is supported by an affidavit filed on behalf of the applicants and sworn by Samantha Jane Kinsey, and correspondence exhibited to that affidavit shows that the need for an adjournment has been attributed to paragraph 34 in the second and third respondents’ statement of argument.
The application to adjourn is resisted by all respondents, essentially on the basis that the applicants’ position in the special leave application will not be advanced by the outcome of proceedings in Victoria for declaratory relief in respect of section 6(4) and, accordingly, no prejudice will be suffered if the application to adjourn is refused. It was further submitted on behalf of the respondents that the proceedings in Victoria will be subject to the contingency of possible appeals.
Weighing the competing factors, it appears to me that the preferable course is to refuse the application to adjourn.
The orders I make are:
I reserve the right to revise the transcript of that ex tempore ruling. Anything further?
MR REDWOOD: No, your Honour.
HER HONOUR: Adjourn the Court.
AT 10.49 AM THE MATTER WAS ADJOURNED
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