Maranoa Transport Pty Ltd & Ors v State of Western Australia & Anor [2016] HCATrans 77 (31 March 2016)

Last Updated: 1 April 2016

[2016] HCATrans 077

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P4 of 2016

B e t w e e n -

MARANOA TRANSPORT PTY LTD (IN LIQ) (ACN 009 668 393)

First Plaintiff

ANTHONY LESLIE JOHN WOODINGS

Second Plaintiff

ANTONY LESLIE JOHN WOODINGS IN HIS CAPACITY AS TRUSTEE UNDER A DEED OF SETTLEMENT DATED 17 SEPTEMBER 2013 IN RESPECT OF THE INTERESTS OF BELL GROUP (UK) HOLDINGS LIMITED (IN LIQ) AND MARANOA TRANSPORT PTY LTD (IN LIQ) (ACN 009 668 393)

Third Plaintiff

and

STATE OF WESTERN AUSTRALIA

First Defendant

THE BELL GROUP LIMITED (IN LIQ) (ACN 008 666 993) AND ALBANY BROADCASTERS LIMITED (IN LIQUIDATION) AND AMBASSADOR NOMINEES PTY LTD (IN LIQUIDATION) AND BELCAP ENTERPRISES PTY LTD (IN LIQUIDATION) AND BELL BROS HOLDINGS LTD (IN LIQUIDATION) AND BELL BROS PTY LTD (IN LIQUIDATION) AND BELL EQUITY MANAGEMENT LTD (IN LIQUIDATION) AND BELL GROUP FINANCE PTY LTD (IN LIQUIDATION) AND BELL PUBLISHING GROUP PTY LTD (IN LIQUIDATION) AND DOLFINNE PTY LTD (IN LIQUIDATION) AND DOLFINNE SECURITIES PTY LTD (IN LIQUIDATION) AND HARLESDEN FINANCE PTY LTD (IN LIQUIDATION) AND INDUSTRIAL SECURITIES PTY LTD (IN LIQUIDATION) AND NEOMA INVESTMENTS PTY LTD (IN LIQUIDATION) AND TBGL ENTERPRISES LTD (IN LIQUIDATION) AND THE BELL GROUP LTD (IN LIQUIDATION) AND WANSTEAD PTY LTD (IN LIQUIDATION) AND WANSTEAD SECURITIES PTY LTD (IN LIQUIDATION) AND WAON INVESTMENTS PTY LTD (IN LIQUIDATION) AND WIGMORES TRACTORS PTY LTD (IN LIQUIDATION)

Second Defendants

BELL J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO PERTH

ON THURSDAY, 31 MARCH 2016, AT 12.01 PM

Copyright in the High Court of Australia

____________________

MR J.C. VAUGHAN, SC: May it please the Court, I appear for the plaintiffs. (instructed by Ashurst)

MR A.J. SEFTON: May it please the Court, I appear for the first defendant. (instructed by State Solicitor’s Office (WA))

HER HONOUR: Yes, thank you, Mr Vaughan, what is the position?

MR VAUGHAN: Your Honour has no doubt seen the plaintiffs’ summons and Mr Woodings’ affidavit, sworn 30 March. Those documents are yet to be filed but my instructors undertake to file them. Your Honour will appreciate that concerns arose as to the plaintiffs’ position, given the retrospective nature of the proposed amending Act. Just for completeness, the concerns were twofold: one, authorisation to instruct; and, two, funding.

HER HONOUR: Yes.

MR VAUGHAN: I am pleased to inform your Honour that those concerns have been overcome - accommodation has been forthcoming from the authority and the State. There is no need to trouble your Honour with details of that accommodation, it suffices to say that the accommodation is there and as a result the plaintiffs no longer seek to have the hearing dates vacated.

HER HONOUR: I see.

MR VAUGHAN: The plaintiffs do have a short residual concern as to the scope of the issues for argument, given the proposed amending Act. Your Honour will have seen that we have provided a further minute that suggests that one order the Court might consider making is excluding certain issues from the hearing scheduled for next week and those are the issues in paragraphs 75A and 75B of the statement of claim.

HER HONOUR: Yes.

MR VAUGHAN: Your Honour will recall that the Maranoa Transport plaintiff raises an additional contention as to Corporations Act inconsistency.

HER HONOUR: Yes.

MR VAUGHAN: In short, that is because at present Maranoa Transport is not an excluded matter so far as the Bell Act invokes sections 5F and 5G. The proposed amending Act will alter that with purported retrospective effect. Now, we do not accept that that necessarily overcomes the issue and we see that if the amending Act is passed, related issues will arise, but in a different context and informed by the changes in the amending Act. We accept that it is premature - - -

HER HONOUR: Mr Vaughan, can I ask this? I appreciate, having seen Mr Woodings’ affidavit, the likelihood, or the reasonable basis, for the expectation that during the course of the hearing of the proceedings next week the amending Act may become law, but until it does my first question is, is it not premature to be considering whether the arguments in 75A and 75B of the statement of claim are denied to you. Secondly, if they are, it would not require an order of the Court for the plaintiffs to abandon them.

MR VAUGHAN: The second is certainly true, your Honour. One anticipates that if the amending Act becomes law then it is likely that programming directions are going to need to be made to deal with the issues that arise as a result of that. Our concern was simply this, your Honour; whether so far as that discrete Maranoa Transport issue is likely to become moot in its present form it is an appropriate use of the Court’s resources to be hearing argument on that issue next week. We raise it simply as a case management issue for the Court. We consider it appropriate to do that at the earliest opportunity, and that is today. We are content to present argument on the issue. If the Court wishes it to be presented, we can do so.

As your Honour says, at the moment it is just a proposed amendment and the law as it stands permits us to present the argument. We are just conscious that the Court may consider it better use of its resources to defer consideration, given that the amending Act appears inevitable, so we leave it essentially in the Court’s hands. It may, of course, come out of both the Court’s hands and our hands if the amending Act was to be passed, for example, on 5 April and we had not yet presented argument by that time.

HER HONOUR: Indeed.

MR VAUGHAN: So that is the concern in a nutshell and I do not need to take it any further than that, your Honour.

HER HONOUR: I think, Mr Vaughan, I am right, am I not, in my view that if Maranoa were not to rely on the discrete argument in paragraph 75A and 75B of the statement of claim, that does not change the form of the questions asked in the special case, there is no requirement to amend the special case to take account of that possibility, is there?

MR VAUGHAN: I have not reconsidered the special case, your Honour. My recollection is no. My recollection is that the questions are asked generically as to the specific sections rather than raising the Maranoa Transport issue as a discrete point.

HER HONOUR: Yes, I think that is so.

MR VAUGHAN: I am sure the parties would agree to any amendment that was necessary though.

HER HONOUR: Indeed. Mr Vaughan, I am grateful for the advance notice, as it were, of the issue. It seems to me that at this stage it would be premature to make any order if indeed one were needed, but the advice is noted. It is not clear to me that it is necessary for me to make any order in relation to the proceedings as the result of this hearing. Is that so?

MR VAUGHAN: Probably the only order that is appropriate is that each party bear its own costs of today, your Honour.

HER HONOUR: Yes, very well. Mr Sefton, is there anything you wish to put?

MR SEFTON: Yes, your Honour. Simply, your Honour, that we would anticipate that in the event that the amending Bill did become law during the hearing that by appropriate programming directions for the filing of supplementary submissions that any consequences could be adequately dealt with and we agree that it is premature at this stage to make any directions other than in relation to costs.

HER HONOUR: Yes, and the order that is sought in that respect, I take it you do not seek to be heard on?

MR SEFTON: No, we are content with that order, if it please the Court.

HER HONOUR: Yes, very well. I order that each party bear its costs of today. The Court will adjourn.

AT 12.10 PM THE MATTER WAS ADJOURNED