Adams & Ors v Alemite Lubrequip Pty Ltd

[1995] HCATrans 107

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S158 of 1994

B e t w e e n -

BRIAN ELLISTON ADAMS & ORS

Applicants

and

ALEMITE LUBREQUIP PTY LIMITED & ORS

Respondents

Application for an adjournment

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 5 MAY 1995, AT 9.15 AM

Copyright in the High Court of Australia

MR N. PERRAM:   May it please the Court, I appear for the applicants.  (instructed by Mallesons Stephen Jaques)

MR A. TSIRIMOKOS:   May it please the Court, I appear for the respondents.  (instructed by Vandenberg Reid)

HIS HONOUR:   Yes, Mr Perram.

MR PERRAM:   May it please the Court, I move on a chamber summons dated 2 May.  I seek leave to read the affidavit of Mr Robert Steven Hollo affirmed on that date.  That is the evidence upon which I will be relying.

HIS HONOUR:   Have you any material, Mr Tsirimokos?

MR TSIRIMOKOS:   Yes, I do, your Honour.  I would seek to file in Court an affidavit sworn by myself this morning.

MR PERRAM:   I have no objection.

HIS HONOUR:   Do you have a copy?

MR PERRAM:   Yes, your Honour.

HIS HONOUR:   Mr Tsirimokos, the main ground, as I understand it, of your clients’ view on this matter is born of the disadvantage that will flow if the matter is not disposed of on Friday.  Is that so?

MR TSIRIMOKOS:   Yes, that is, your Honour.  The respondents’ position is effectively that the applicants were in a position where they could have raised the issue of the Court of Appeal’s apparent error much earlier than it did, and the result of the application being made some six months after it could have been made has meant that this application has been forced to be made by the applicants.

HIS HONOUR:   Yes.  The question then really comes down to this, does it not; and that is, can any disadvantage that will flow to your client from delay be covered by the terms of any order in the event that your client should be successful?

MR TSIRIMOKOS:   I cannot say that there is disadvantages that cannot be covered by an order, no, your Honour.

HIS HONOUR:   What is the situation with regard to interest on the judgment?

MR TSIRIMOKOS:   At this stage, your Honour, the trial judge has not determined the question of the quantum of any judgment, but interest would continue to run on an either prejudgment or post‑judgment basis in any event.

HIS HONOUR:   Then, the real problem is simply how to dispose of the case?

MR TSIRIMOKOS:   Yes, it is, your Honour.

HIS HONOUR:   That being so, what then is the disadvantage in sending the matter over from this Court to await the decision of the Court of Appeal?

MR TSIRIMOKOS:   The only disadvantage is one of time.

HIS HONOUR:   I must say that if there should be any error in the judgment in the court below, it would seem to be contrary to justice to allow that error to remain.

MR TSIRIMOKOS:   Yes.

HIS HONOUR:   Of course, I do not say anything about whether there is an error or not, but if one puts that on one side and the delay in time on the other, the balance seems to me to come down very much in favour of sending this matter over out of the present list.

MR TSIRIMOKOS:   The respondent’s position really is that, firstly, the application was made very late; secondly that it is ill‑founded anyway, but that is not a matter that I can really submit to your Honour.  It is not appropriate for your Honour to rule on.

HIS HONOUR:   Yes.

MR TSIRIMOKOS:   The only reason that any application is now made and can now be made to adjourn the application for special leave is because of the applicants’ own failure to diligently pursue the matter before the Court of Appeal.

HIS HONOUR:   Yes.  Is there anything further you wish to add?

MR TSIRIMOKOS:   No.

HIS HONOUR:   I do not need to hear you, Mr Perram.  As the adjournment of this matter is not likely to occasion injustice to the respondents except by way of delay in the recovery of the amount to which they might ultimately be held to be entitled, I think the appropriate order is the matter should be adjourned out of a list which is presently before this Court for hearing in Sydney on Friday next.  The question of the costs of the proceedings before this Court and the costs of the application for adjournment today can, however, await the decision of this Court on the final determination of the matter.  Is there anything further?

MR TSIRIMOKOS:   No, your Honour.

MR PERRAM:   Thank you, your Honour.

HIS HONOUR:   Very well.  The matter will be adjourned accordingly.

AT 9.22 AM THE MATTER WAS ADJOURNED