Agar v Hyde- Agar v Worsley

[2000] HCATrans 109

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S159 of 1999

B e t w e e n -

A E AGAR & ORS

Appellants

and

LUKE DOUGLAS HYDE

Respondent

Office of the Registry
  Sydney  No S160 of 1999

B e t w e e n -

A E AGAR & ORS

Appellants

and

PETER MICHAEL WORSLEY

Respondent

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 22 MARCH 2000, AT 10.21 AM

Copyright in the High Court of Australia

________________________

MR P.J. DEAKIN, QC:   In each of those matters, if it please the Court, I appear for the appellants with MR A.S. BELL.  (instructed by Garrett Walmsley Madgwick)

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR M.L. BRABAZON, for the respondent in each matter.  (instructed by McClellands)

GLEESON CJ:   Yes, Mr Deakin.

MR DEAKIN:   One formal matter before we do commence, your Honours.  An amended notice of appeal has been incorporated into the appeal book at pages 819 through to 821.  It has not been the subject of any formal order of the Court that we be entitled to rely upon that.  I understand it is not opposed.

GLEESON CJ:   Is that so, Mr Jackson?

MR JACKSON:   No objection, your Honour.

GLEESON CJ:   Yes, you have leave to amend.

MR DEAKIN:   If your Honour pleases, and in each case there is a document in similar form.

MR JACKSON:   No objection, your Honour.

GLEESON CJ:   Thank you.  Yes, you have such leave in each case.

MR DEAKIN:   If your Honour pleases.  Your Honours, the appellants are the New Zealand Rugby Football Union Inc and the 12 individuals who are the surviving representatives of the major rugby‑playing nations of the world who were appointed by their respective national unions to represent those Unions on the Board of the International Rugby Football Board, who we will conveniently refer to as the IRFB.  Under the bye‑laws of the IRFB at the relevant time it is only the member unions themselves who can propose any changes to the bye‑laws or the laws of the game and then only upon notice being provided and circulated and only after 75 per cent of those attending the meeting vote in favour of the change.

The respondent, Mr Hyde, was playing in what was known as a Colts game of rugby union, as I understand it, at an age level on 23 August 1986 in a competition in Sydney, which was organised by the Sydney rugby union, one of the defendants joined in the proceedings.  He was playing hooker, the position between two props – as I am sure most of your Honours would understand – in a team fielded by the Warringah ‑ ‑ ‑

GAUDRON J:   I do not think you should make that assumption.

MR DEAKIN:   I am sorry, your Honour.  The position is that occupied in the front row of a scrum, supported on either side by another player, as props.  He was then 19 years of age and it is his case that, prior to his team, the Warringah team, and the scrum being properly formed, the opposing Gordon pack of forwards charged at the Warringah pack, severely injuring Mr Hyde’s neck and leaving him tragically an incomplete quadriplegic. 

Similarly, in relation to the respondent, Mr Worsley, in the following year, in August 1987, he was playing a game, again as hooker, in a first grade competition organised by the Riverina rugby organisation, another party to the proceedings.  He was playing for a team known as the Wagga Agricultural College and he makes a similar allegation to the effect that, as his team was not properly formed, the Rivcoll team, the opposing scrum team, engaged his pack before it was ready to receive him, and he sustained tragically, again, similar devastating injuries to his spine leaving him a quadriplegic.

GLEESON CJ:   Mr Deakin, where can we most conveniently find, in the papers, a statement of the functions and powers of the IRFB?

MR DEAKIN:   I think most conveniently in the judgment of the Court of Appeal, your Honours, because within that judgment there are reproduced the relevant bye‑laws from governing the IRFB.  There are some omitted but I think their Honours have carefully summarised those bye‑laws at 682 of volume 3 of the books.

GUMMOW J: The Court of Appeal is reported in 45 NSWLR 487.

MR DEAKIN:   Thank you, your Honour.  We were going to take your Honours to it, needless to say, and perhaps, in answer to your Honour’s question, it might be convenient to examine those bye‑laws.  There is some confusion, I should try to assist your Honours, in that the bye‑laws at this time talked about the Board in essentially two senses.  The Board is the International Rugby Football Board itself.  Within that IRFB there is a Board comprising the member unions’ representatives and it is the member unions’ representatives who have been joined as the present putative defendants, the present appellants.

McHUGH J:   What is the meaning of “Board” in rule 12?

MR DEAKIN:   Can I just answer your Honour by drawing your Honour’s attention to bye‑law 2, which I think your Honour has already read, namely, “The Board shall consist of ‑ ‑ ‑

McHUGH J:   Yes, I know but that is not my problem.  My problem is that when it talks about:

Notice of any proposed alterations…..to be dealt with at the Annual Meeting of the Board shall be sent by the Union or a Committee of the Board through its –

is “the Board” there a reference to what I will call the IRFB or is it a reference to the Board of the union?

MR DEAKIN:   We would read it in line 4 of that extract that your Honour is referring to within bye-law 12, as in that instance a committee of the IRFB.

McHUGH J:   Yes, well, I thought that was probably the case, but is there any provision in the rules for a chairman?  It is not in the part, I think.

MR DEAKIN:   It is not in that part, but perhaps we could – the bye-laws are reproduced in full in the book in volume 2.

GUMMOW J:   It is in 9, is it not?

MR DEAKIN:   I am sorry, your Honour?

GUMMOW J:   Rule 9.

McHUGH J:   Yes, “The officers…..shall be a Chairman”.

MR DEAKIN:   Yes, as your Honour Justice Gummow has pointed out, it is provided for in rule 9 and looking at the minutes of the relevant meeting which in  ‑ ‑ ‑

McHUGH J:   One of the reasons I asked you that, if my recollection is right, do not your submissions assert that alterations can only be made by a proposal by a constituent member?

MR DEAKIN:   That is our submission, your Honour.

McHUGH J:   Does not bye-law 12 indicate that a committee of members of the Board themselves can initiate an alteration?

MR DEAKIN:   Your Honour is correct in this respect:  there are two means by which some alteration to the laws can be effected at an annual meeting of the Board or through a committee of the Board appointed through some other means.  The point that we make, in answer to your Honour’s question, is that there was only an annual meeting in 1986 and an annual meeting in 1987, and so that there was no means by which the laws of the game could have been changed on the plaintiffs’ case, except at those meetings.  But your Honour is correct in that there was a mechanism for a committee of the Board to be appointed, providing that the notice requirements and the like had been complied with.  I hope that is a ‑ ‑ ‑

GUMMOW J:   What is the providence?  That these are contractual connections, are they, between these bodies and parties?  Where does this document come from?  By what law is it construed?

MR DEAKIN:   In 1987, your Honour - I can give your Honour a very specific answer, because the 1987 bye-laws provided expressly that:

in the event of a doubt arising, at any time, as to the meaning or construction of, the foregoing Bye-Laws, the same shall be decided by the Board.

This is extracted in volume 2 at pages 460 to 461 and (ii):

These Bye-Laws shall in all respects be governed by and construed in accordance with English Law and any dispute arising thereunder shall be subject to the exclusive jurisdiction of the English Courts.

McHUGH J:   But that does not answer his Honour’s question.  How did they become binding?  Is there any evidence, for example, that players when they apply for membership of a club sign an application form which incorporates these rules in some way?

MR DEAKIN:   Absolutely not, your Honour.  The only evidence is that the competition was in each instance organised by the Sydney Rugby Union, in the case of Mr Hyde and the Riverina Rugby Union in the case of Mr Worsley.  These are internal documents, I suppose it has to be said, defining the workings of the IRFB.  In answer to the question in relation to a contract, I suppose there is a contract of sorts between the IRFB and the member Unions.  It could be argued, I suppose, that there is a contract of sorts between the member Unions, who send their representatives, presumably pursuant to some agreement between the member Unions and the IRFB, and they agree that only their representatives can vote and there is a further agreement that only those representatives who are, in turn, on the governing body of the member Unions are entitled to attend.  So there are various interlocking arrangements between the IRFB and the member Unions, but I do not think there is any evidence, nor any suggestion, that it filters down to player level, in answer to your Honour.

GLEESON CJ:   But it appears from page 682, line 40, that the IRFB is a voluntary association of national unions and I suppose the national unions are each voluntary associations of provincial unions and provincial unions are probably, in turn, voluntary associations of local unions or district unions.

MR DEAKIN:   Yes, indeed, your Honour.

GLEESON CJ:   Presumably, it is the fact that, either at the local level, or at the provincial level, or at the national level, there is agreement that the game will be played according to the rules made and changed from time to time by the IRFB that produces that consequence.

MR DEAKIN:   My only hesitation is the word “agreement”, your Honour, but I think what your Honour is putting to us in broad terms must be correct.  But at the same time, as Mr Justice Grove pointed out in his judgment, it is a voluntary thing by each of them to agree to play this game by these rules and there would be nothing stopping them playing by different rules or playing in a competition which had a variation of those rules because we know from the evidence that there were local variations of the – I do apologise, not the rules, it is best to use the correct terminology – the laws of the game accepted and implemented in Australia.

So that, whilst it is true that the broad structure that your Honour the Chief Justice outlined to us is correct, and the plaintiffs’ own case, with respect, is that those local bodies failed in their duty to the plaintiffs by failing to amend the laws of the game.  So it is the plaintiffs’ own case that even within this structure the local bodies had a duty and breached it in failing to amend the laws of the game for their purposes and in the light of what they knew.

GLEESON CJ:   As I understood it, from something I read in the papers, in Australia and New Zealand the laws concerning replacement of injured players ‑ ‑ ‑

MR DEAKIN:   Had been varied.

GLEESON CJ:   Which would seem to be a matter fairly close to the subject of potential danger.

MR DEAKIN:   Indeed, indeed, and, your Honour, it happened historically and the plaintiffs’ case is that it could and should have happened in this case in respect of the local defendants and their responsibilities to the plaintiffs.

McHUGH J:   But supposing, for example, the IRFB promulgated a bye‑law which said in previous days times that a player lost his amateur status if he participated in a commercial advertisement.  Could the IRFB enforce that against a player in some way?

MR DEAKIN:   I may be wrong on this, your Honour, but that does not seem to be accommodated at all under the bye‑laws.  There does not seem to have been reserved by the IRFB any power to punish, penalise, pull people into line.  Now, as your Honour may be referring to, things may have changed since these days but it appears not in these days, your Honour.  I think that is all I could answer your Honour in relation to the evidence in this case. 

As Mr Justice Grove says, this is an election by everybody, it is true, to accept that we are playing a game of rugby in accordance with a set of laws but it is not pleaded by the plaintiffs that the IRFB did insist on its laws being complied with and that it extended its arm into Australia by some insistence or requirement that the games be played in accordance with the laws.

McHUGH J:   The reason I ask these questions, I mean, they may set up a competition in Brazil to play rugby union in accordance with these rules.  Brazil may not be an associate member or whatever the other category.  The rules might be binding on the players in some way but you could not sheet it home, I would not have thought, to the IRFB.  So maybe it is important to find out just what the connection is here down the line.

MR DEAKIN:   Well, it is our submission, your Honours, that when one looks particularly at the objects set out at 683 of the appeal book in paragraph 3 of the bye‑laws, the Board existed for specified purposes and (a) is the principles of amateurism and (b), it is true, includes the “Framing and interpreting the Laws of the Game”.  But otherwise if one looks particularly at (c), (d) and (e), the Board exists for the purposes of regulating games between competing nations at an international level and that is its purpose and function.  So that everyone who competes in an international game of rugby is required, and the Board asserts it is fair to say a power to regulate games at an international level ‑ ‑ ‑

GLEESON CJ:   But they could only compete at an international level because they all play according to the same laws.  (b) takes its context from the surrounding paragraphs, I would have thought.

MR DEAKIN:   Yes, but the example that Justice McHugh gave of a team in Brazil, there would be nothing to stop a team in Brazil playing in Brazil under any laws of the game which it chose to play.  It would only be if a team from Brazil sought to play another nation a game of rugby that the International Rugby Football Board may wish to be involved in that, and may well seek to exercise some power that it may or may not hold.

HAYNE J:   Well, it may wish to be, but its wish could be given effect to only through the consent of the participating parties.

MR DEAKIN:   Yes.

GLEESON CJ:   The example of Brazil is not far fetched.  Argentina is not referred to in paragraph (b) on page 682, and, as I understand, it is a prominent rugby nation.

MR DEAKIN:   Yes.  There is a list of members and associate members.  They are graded – and I think your Honour will find that Argentina is one of the associate members.

McHUGH J:   And are there local variations in the rules?  For instance, 30 or 40 years ago there was a rule about kicking out on the full if you are in your 25, and so on.  It applied internationally but not ‑ ‑ ‑

MR DEAKIN:   Justice Gummow was nodding his head in recollection of that very matter.  Yes, your Honour.  There are local variations to the rules and, your Honours, there were local variations at this time dealing, particularly, with young players.  So this is really the very point, of course, that we are making and the plaintiffs make the very point as well; namely, that there was power to do it, they did do it and they should have done it, the local defendants.  So that is, we would submit, the correct analysis of it.

Could I then proceed with how we wanted to approach the matter, your Honours.  There has been a great deal of time wasted, or at least expended, in various interlocutory matters, particularly in the Hyde matters, but the respondents ‑ ‑ ‑

McHUGH J:   Talking about wasting time:  why did the special leave application take so long to get on in this Court?

MR DEAKIN:   I do not know the answer to that, your Honour.  There was no application for expedition, but I did not think it was delayed any further than in the ordinary course of the Court’s busy schedule.

GLEESON CJ:   Compliance with the rules would bring special leave applications on in about six months, ordinarily.  This special leave application took a little less than 12 months to come on.

MR DEAKIN:   I am sorry, I had not addressed that, your Honour.  Perhaps I could try to get some instructions on that and if I can provide some explanation for it, your Honours.  In any event, your Honours, the respondents ultimately accepted that, in order to pursue their remedies against the appellants as foreign defendants, it would be necessary for them to apply for leave, as required by Part 10 rule 2(1).

GAUDRON J:   Is that because no appearance was filed?

MR DEAKIN:   Yes.

GAUDRON J:   Your side simply put on a cross‑motion, as it were, under ‑ ‑ ‑

MR DEAKIN:   Part 11.

GAUDRON J:   Part 11, yes, and that is not taken to be a consent to the jurisdiction.

MR DEAKIN:   Exactly, your Honour.  The rules provide for two methods to bring this issue before the Court, really.  The first, and logically the way it has been dealt with, is that before a plaintiff can proceed any further beyond service against non‑submitting defendants, leave to proceed is required.  And, equally, a defendant – and in this case they did – is entitled under Part 11 rule 8 to make application to set aside service on the basis, inter alia, of no jurisdiction.

GAUDRON J:   Well, is that right?  Is it under Part 11 rule 8, or under Part 10 rule 6A?

MR DEAKIN:   The applications were filed under Part 11 rule 8.  But your Honour is perfectly correct in that 6A makes specific provision for the court making an order of a kind as referred to under 11 rule 8.

GAUDRON J:   Now, what is the precise relationship between rule 2 and rule 6A, in your submission?  That is to say, what I am really getting at, is it contended that precisely the same issues arise under rule 6A as under rule 2?

MR DEAKIN:   At least, we respectfully submit, in relation to an inquiry under 6A(2)(a) which refers expressly to:

the service of the originating process is not authorised by these rules –

There may be an area that 6A covers that extends beyond the Part 10 rule 2 application.

GUMMOW J:   Yes, (2)(b) for one thing.

MR DEAKIN:   Yes.  Ordinarily, (2)(b) would probably be addressed only at the discretion stage of a Part 10 rule 2 application.

GUMMOW J:   If at all.

MR DEAKIN:   If at all, yes.

GAUDRON J:   So what does the subrule (2) stage involve in your submission?

MR DEAKIN:   It involves a plaintiff being required to discharge a burden of proof establishing a case on a good arguable basis.

GUMMOW J:   Where do you get that out of the words “the rules”?  Do not refer to cases in some other country on some other set of rules.  Where do you get it out of these rules?

MR DEAKIN:   There is no test specified anywhere within Part 10 rule 2 as to what is required to be established in order for a country to obtain an order giving it leave to proceed.

GUMMOW J:   That is right, in contradistinction to the rules considered by the House of Lords in that Seaconsar Case, for example.

MR DEAKIN:   Yes, the rules do provide something similar to the Federal Court, I think, in Australia in England.

GUMMOW J:   While you are on that, is there no provision – there was provision at one time for conditional appearance.  That has gone, has it not, in New South Wales?

MR DEAKIN:   Yes.

GUMMOW J:   It used to be Order 11 rule 7, by the look of it.

MR DEAKIN:   Yes.  The other provision that is relevant which ‑ ‑ ‑

GUMMOW J:   So how do you come along?

MR DEAKIN:   The rules deal with it, your Honour.  Firstly, Justice Gaudron was raising the question of whether or not the  11 rule 8 application is a submission to jurisdiction.  That is dealt with specifically in the rules in subrule (3).

GAUDRON J:   In truth, how this issue came about was a motion for leave by the plaintiffs under rule 10 subrule (2), I take it, and a cross‑motion by the defendants, if I can call them that for ease of reference, under 10 rule 6A for an order of a kind that might be made under Part 11 rule 8, is that right?

MR DEAKIN:   I think that is right, yes, your Honour.

GAUDRON J:   Do not tell me what you think; tell me what is right.

MR DEAKIN:   That is our understanding of the matter, yes, your Honour.

GAUDRON J:   And the motions were heard together at all times?

MR DEAKIN:   I think that perhaps was the practice.  It certainly occurred in this case.

GAUDRON J:   And no questions arose as to who had to show what under which particular rules?

MR DEAKIN:   At the time, when the initial application was made, we would have thought that the same matter would have been required to be addressed.

GAUDRON J:   Were the rules different at that stage from their present form?

MR DEAKIN:   Prior to 1988, your Honours, they were different, yes.

GAUDRON J:   Now, when did these motions come before Justice Grove?

MR DEAKIN:   Well after the changes, your Honour.

GAUDRON J:   So we are dealing with these particular – the rules that came in in 1988.

MR DEAKIN:   Yes, your Honour.  When the matter was last before the court in the – when a similar issue arose in 1988 in the matter – we have given your Honours a reference to it – Contender 1 Limited v LEP International Pty Ltd, it was the old form of rules.

GUMMOW J:   Yes, and the old form of rule, Part 10, rule 2, subrule (2)(b), required the court to be satisfied, before you got leave, that there was a prima facie case.  But that was taken out.

MR DEAKIN:   Yes.

GUMMOW J:   Well, this case seems to have been decided as if it has been left in.

MR DEAKIN:   What this case has decided to date is that there is still an onus that is required to be satisfied before leave to proceed is granted and that that onus is properly described as at least a good arguable case.

GAUDRON J:   Well, why?  I mean, one can well see why there is an onus to establish that one comes within at least one of the categories in Part 10 rule 1A, but why do you need to go beyond that?

MR DEAKIN:   Well, it is necessary, your Honours, in our submission, for one to establish something beyond being able to point to a rule which may have some operation.  One must examine the factual matrix, at least to some extent, and one must examine the pleadings.

GUMMOW J:   How?

GAUDRON J:   Or why?

GUMMOW J:   How do you examine the factual matrix?

MR DEAKIN:   On the basis of the pleadings as filed.

GUMMOW J:   That I can understand.  It seems to be not what is brought on here though.

GLEESON CJ:   But you must be examining it for some purpose.  What are you looking at them for?  When you read the pleading for this purpose, what are you trying to ascertain?

MR DEAKIN:   For relevant purposes, to establish whether or not there is a case of tort against the defendant.

HAYNE J:   A case or a claim.  Which?

MR DEAKIN:   Well, we would put it as a case in tort.  A cause of action, if one could use that word, in tort.  It would not be a sufficient compliance with the leave to proceed requirement to merely note that there is a claim in tort asserted.  That would be contrary to all of the law which has been in place to date.

GUMMOW J:   What law?

MR DEAKIN:   In relation to the circumstances in which foreign defendants can be brought before a court.

GAUDRON J:   But these are new rules.

GUMMOW J:   That is just not right.

GAUDRON J:   These are rules that, if anything, go back to the old Common Law Procedure Act.

MR DEAKIN:   Yes.

GAUDRON J:   Yes.

GLEESON CJ:   Consider Part 10, rule 8(1)(h).

MR DEAKIN:   Your Honour, I will just have the full set of rules.  I do apologise, your Honour.  Part 10 ‑ ‑ ‑

GLEESON CJ:   Part 11, rule(1)(h) confers on the Court a power “in its discretion” to decline “to exercise its jurisdiction”.

MR DEAKIN:   Yes, your Honour.

GLEESON CJ:   What guidance do the rules give as to the circumstances in which a court whose jurisdiction has been regularly invoked might decline to exercise that jurisdiction?  Could it decline, for example, because it is too busy?

MR DEAKIN:   I do not think the rules do provide any express assistance as to what matters the Court should have regard to in exercising a power under subrule (h), your Honour.  It would be fair to say that, consistent with 6A, it would include a consideration of whether the rules have been satisfied and whether forum non conveniens considerations, those being without limiting the general application of 6A, those being two particular matters which are dealt with in that subrule ‑ ‑ ‑

GLEESON CJ:   But the very hypothesis on which that particular subparagraph proceeds is that a court which has jurisdiction is declining in its discretion to exercise its jurisdiction.  Now, is there anything expressed in the rules that gives any guidance as to the circumstances in which a court might properly decline to exercise a jurisdiction that has been regularly invoked, and if there is not, where do the principles come from?

MR DEAKIN:   To answer the first part of your Honour’s question, I do not think the rules do provide any assistance on the matter.

GAUDRON J:   That rule to which his Honour the Chief Justice referred is one that relates to any service outside the State of New South Wales, is it not?  It relates to people served in Australia under the Service and Execution of Process Act, does it?

MR DEAKIN:   Would your Honour just pardon me a moment?

GAUDRON J:   Or does it apply generally, if it includes people served within the State?

MR DEAKIN:   Yes.  11.8 is available I think to any defendant.

GUMMOW J:   That is right.

GAUDRON J:   Within the State or ‑ ‑ ‑

MR DEAKIN:   Yes, any defendant.  It is only 6A that we looked at earlier ‑ ‑ ‑

GUMMOW J:   That is right.

MR DEAKIN:   ‑ ‑ ‑ which specifically deals with the defendant who is served outside Australia.  So 11.8 applies to anybody.  Anybody can come along and invoke those matters.

GLEESON CJ:   Yes.  Now, that gives rise to the question, if there is nothing in the rules that deals with the question as to the circumstances in which the court might decline in its discretion to exercise its jurisdiction, what is the source of the principles that govern a discretionary refusal to exercise a jurisdiction that has been regularly invoked?

MR DEAKIN:   Well, your Honour, we would submit one must go back to the common law and look at those authorities which bear on the issue of circumstances in which jurisdiction properly invoked is nevertheless not exercised by the court in the exercise of its discretion and that is one of the matters, of course, that we relied upon in this case, those cases dealing with discretion in circumstances where, even if it could be said that some jurisdiction is established, nevertheless the court, in its discretion, declines to exercise it and one of the matters, of course, that arises in relation to that is a forum non conveniens consideration, only one of them, but that is an example of it, where even if jurisdiction is validly invoked and available the court, on forum non conveniens grounds, nevertheless declines to exercise it on the basis that it would be inappropriate for it to do so.

GAUDRON J:   But that would be, in your case, under rule 6A.

MR DEAKIN:   Yes, well, that is specifically provided for in 6A, of course.

GAUDRON J:   Yes.  What I am really asking is, given the presence of rule 6A, what is required of a plaintiff under rule 2?  Why would rule 2 pick up the same considerations and cast an onus on the plaintiff in respect of them, as would seem to be implicit in rule 6A, for the defendant to show?

MR DEAKIN:   We would submit it does flow from the joint judgment of this Court in Voth’s Case because they equate the two positions ‑ ‑ ‑

GUMMOW J:   That is on different rules.

GAUDRON J:   That is on different rules.

GUMMOW J:   It is on the old rules, but in any event in Voth, if you look carefully at it, there was also a motion put forward on the ground, I think, in inherent jurisdictions of forum non conveniens.

MR DEAKIN:   There was that aspect to it, your Honour, but could we remind your Honours of what we said in Voth?  We accept what your Honour has said about it being under the previous regime of rules, but the joint judgment of four members of the Court, Voth v Manildra Flour Mills Pty Limited (1990) 171 CLR 538, but at page 564 ‑ ‑ ‑

GUMMOW J:   Perhaps if you start at page 539, actually, so we can know what was going on.

MR DEAKIN:   Yes, indeed, your Honour, I am sorry.

GUMMOW J:   The defendant filed a conditional appearance, right?

MR DEAKIN:   That is right.

GUMMOW J:   That does not happen any more, because the rules have been changed.

MR DEAKIN:   Yes, your Honour.

GUMMOW J:  

moved to have the statement of claim or the service of it set aside and, alternatively, an order that the proceedings be stayed - - -

MR DEAKIN:   Indeed.

GUMMOW J:   I think they were relying, in the first instance, on what was Part 10 rule 8, for an order setting aside and, alternatively, in the inherent jurisdiction, if that is the right way to put it, for a stay.

MR DEAKIN:   Yes, your Honour, that is true.

GUMMOW J:   Now, that is the context in which their Honours say what they say.

MR DEAKIN:   All of those matters clearly do have to be taken into account, but the ‑ ‑ ‑

GUMMOW J:   And, of course, in order to get leave to serve the statement of claim in Missouri, there had been a requirement under the old rules for an affidavit showing a case; not present here.

MR DEAKIN:   Yes, we accept that, but, your Honour, both under the old rules, where leave was required to be obtained in advance and, under the new rules, which deal with the position in relation to a non-submitting defendant against whom process has been served, leave is still required and to that extent, whilst your Honour is perfectly correct in, of course, pointing out the difference between the two situations, a requirement of leave is, nevertheless, still present and we would submit that the passage that appears at page 564 does support the proposition that the position should be equated, whether it is the plaintiff’s application for leave or the defendant’s application to set aside the service that has been affected.  The passage reads:

In the present case, the Court has before it an application to set aside service effected pursuant to an ex parte grant of leave to serve outside the jurisdiction.  Where a case falls within a category in which the legislature has seen fit to allow service outside the jurisdiction if, but only if, the leave of the court is first obtained, that court should not grant leave unless it is positively persuaded that it should do so.  Plainly, it should not be so persuaded unless the plaintiff satisfies it that the case is of the relevant category and that the proceedings would not be ‑ ‑ ‑

GUMMOW J:   Just stop there for a moment; “that the case is of the relevant category”.

MR DEAKIN:   Yes.

GUMMOW J:   Well, how does that help you?

MR DEAKIN:   It is true that is says “of the relevant category”, but, your Honour, with respect we would submit it must mean satisfying the relevant category, not merely something which could be brought within its purview and it ‑ ‑ ‑

HAYNE J:   I do not understand the distinction you are drawing.  Are you to be confined to the pleadings?  Are you to not be confined to the pleadings?  Has the plaintiff to put on affidavit material establishing a prima facie case?  And a case can be seen to fall within the category or not by examination of the pleadings and assumption that the facts asserted in the pleadings will be proved at trial.  Do you say that something more must be done?

MR DEAKIN:   We say that in this case something more was done and the Court in that circumstance ought to have regard to the totality of the material before it incorporating both pleadings and evidence.  A plaintiff would be entitled to say, “I do no more than point to what is asserted in the statement of claim”, but what is asserted in the statement of claim with its factual matrix should nevertheless be sufficient for the Court to be able to conclude that a cause of action falling within the relevant rule is made out, otherwise what is the reason for a requirement for leave?  A foreign defendant, as we have examined, has the same rights as a local defendant to take remedy.

GUMMOW J:   I will tell you I think it all starts with a case referred to in Dreyfus which is on your list.  In Dreyfus there is a reference to Maclean v Dawson 45 ER 58. In Maclean v Dawson there was the Chancery rule which started all this off which said that there was leave required and what their Lordships did was to determine whether leave should be granted by looking into the Bill.  They asked whether the Bill was absurd or it related to a subject matter or controversy the court would not get involved in.  That is how they decided it.  Then you get later rules requiring prima facie case satisfaction.  Then you get the removal of those rules, which you got in New South Wales in 1988, where we are.  Concurrently with that you have the Common Law Procedure Act rules which did not require leave.  You have an amalgam of it in New South Wales now.

MR DEAKIN:   Your Honour, one matter that we were not aware of ‑ ‑ ‑

GUMMOW J:   But you cannot say that these rules - whenever leave is required and there is some requirement of falling within a category, that that of itself suggests some evidentiary inquiry because that is just not the history or the sense of it.

MR DEAKIN:   That is the submission that we put.  If your Honours are against us on that, then this matter can be and ought to be analysed on the basis of the pleadings and what they disclose.  We submit that even if the inquiry – in answer to both Justice Hayne and your Honour Justice Gummow – is limited to the pleadings and what is disclosed there, then nevertheless there is not disclosed on the pleadings on our case a sufficient case, whether it be required to be established on a good arguable case basis or some other basis.  There is not established on the pleadings a case satisfying the cause of action requirement that is spelled out in the rules.  Your Honours, could we just put this.  If there is no inquiry at all to be made into what is asserted as the tort relied upon, in other words if one can plead anything at all, it may be a tort that this jurisdiction does not even recognise that is asserted in the statement of claim.

GUMMOW J:   Well, it goes out.

MR DEAKIN:   That illustrates that some inquiry obviously must be made.  There may be an essential ingredient in the cause of action missing, as occurred in that Metall und Rohstoff Case, where an essential ingredient in a conspiracy case was missing, the dominant purpose that was required.

HAYNE J:   But the pleading in that case would not then reveal a claim for a tort committed within the jurisdiction.

MR DEAKIN:   Yes, and we submit that the same approach should be adopted whether it was under the old rules a requirement to obtain leave in advance or whether it is under the new rules for a requirement to obtain leave only after the foreign defendant declines to submit to the jurisdiction of the court.  An examination of the pleadings, at least, is still required in order to ascertain whether the rules have been satisfied.

GLEESON CJ:   Is an application for leave under rule 2 ordinarily made ex parte?

MR DEAKIN:   No, your Honour, but it can certainly – well, I am sorry ‑ ‑ ‑

GLEESON CJ:   Well, I am looking at subrule (2).

MR DEAKIN:   Yes.

GLEESON CJ:   I am simply trying to ascertain whether the rules contemplate that an application for leave will be contested or ex parte.

MR DEAKIN:   A plaintiff is certainly entitled to make his application without serving it and, therefore, properly advised, presumably, he would not serve it because that is exactly what subrule (2) of rule 2 provides for.

GLEESON CJ:   Then rule 6A would come into operation, presumably, giving a defendant an opportunity - does rule 6A give a defendant an opportunity to invite the court which dealt with the original application ex parte, to reconsider whether leave should have been granted in the first place?

MR DEAKIN:   The structure is, I think, intended to be that they should be heard together but whether a 6A application enables a review of an order made under rule 2 ‑ ‑ ‑

HAYNE J:   Could you, without unconditional submission to jurisdiction, seek such a review?  Absent specific provision in the rules generally permitting you to make application for review without unconditional submission to jurisdiction, it seems to me, prima facie, the answer is you cannot.

MR DEAKIN:   I think, in fairness, your Honours, the rules provide, in Part 11 rule 2, that:

Subject to these rules, a person shall not, except by leave of the Court, take any step in any proceedings unless…..he has filed originating process…..or has entered an appearance in the proceedings.

HAYNE J:   Hence, 11.8(3) carving out a particular exception to 11.2.

MR DEAKIN:   Part 11A(3)?

HAYNE J:   Part 11.8(3).  That the making of that application is not voluntary submissions.

MR DEAKIN:   Yes.

GLEESON CJ:   Do we happen to know that, in this case, everybody turned up at the same time and the application for leave under Part 10 rule 2, and the application, or what has been described as the cross-motion, under Part 11 rule 8, via Part 10 rule 6A, was argued at the same time?

MR DEAKIN:   Yes.

GLEESON CJ:   But is that the ordinary way it goes or is it ordinarily the case that leave will have been granted ex parte under Part 10 rule 2 before a defendant turns up and makes a cross-application?

MR DEAKIN:   Well, as we saw from subrule (2), it is certainly contemplated that it can be made ex parte.  Whether there is an ordinary way of doing it, I am not sure I can answer your Honour, but ‑ ‑ ‑

HAYNE J:   But if you would make application under 10.2, preparatory to entry of judgment by default, would you not, or moving for judgment by default?  You would do it ex parte, get your leave and then take whatever steps you are entitled to by reason of non‑appearance.

MR DEAKIN:   Well, we would respectfully submit, that if that is right, that is all the more reason why some more scrupulous and careful consideration of the grant of leave in the first place is required, because otherwise a plaintiff can obtain ex parte relief almost by default in both, literally.  But the defendant, having been served with some process, it is true, but who otherwise has no knowledge of anything that occurs in the matter, can be confronted with the judgment of a court having been entered against it which, we would submit, be a powerful reason why careful scrutiny of the leave application must be made to protect the defendant from that sort of scenario.

HAYNE J:   Why?  The defendant has chosen not to appear and why should that defendant, because he, she, or it is overseas, be treated differently from any other defendant who chooses not to appear?

MR DEAKIN:   Because these defendants are being brought from outside the jurisdiction where, under every principle of law, prior to these rules being introduced, the court had no jurisdiction at all because the traditional jurisdiction of the common law courts were territorial in nature and depended upon a defendant within the jurisdiction.  Now, true it is, we have moved away from ‑ ‑ ‑

GAUDRON J:   Well, you overstate the position somewhat there, do you not?  As a general rule, dependent on service within the jurisdiction, that might be somebody passing through; it could be somebody from as far away as the North Pole.  But for a very, very long time there have been provisions for service outside the jurisdiction, at least since the Common Law Procedure Act in New South Wales.  Is that not right?  And they were provisions for service outside the jurisdiction without leave under the Common Law Procedure Act.

MR DEAKIN:   I was not aware of that, I am sorry, your Honour.  But, no doubt what your Honour is putting to me is absolutely correct, but ‑ ‑ ‑

McHUGH J:   There were amendments made in 1957.  At one stage you had to put on an affidavit showing you had a cause of action.  But in 1957, I think so long as you were within the British Commonwealth, you could just serve outside the jurisdiction.

MR DEAKIN:   The proposition, nevertheless, is that whether or not a standard has to be established, there must be a reason for the leave requirement still being obtained.

GAUDRON J:   Yes.

MR DEAKIN:   It cannot be right to accept what the Court of Appeal says that the foreign defendants are to be just equated with local defendants.  If so, why is there a leave requirement still incorporated into the rules?

GAUDRON J:   Yes.  One has to distil from the structure of these rules, perhaps, what is required under rule 2.  Prima facie I would have thought, given the presence of rule 6A, that a plaintiff had to prove that he or she was within rule 1A, service had been effected and that is all.

MR DEAKIN:   Well, your Honour says “prima facie”.  We submit that by the abolition of what had previously been a reference to prima facie that it ‑ ‑ ‑

GAUDRON J:   No, no, I am saying it is a prima facie construction I would put on rule 2 ‑ ‑ ‑

MR DEAKIN:   I am sorry.

GAUDRON J:   ‑ ‑ ‑ that I would have thought to obtain leave to proceed a plaintiff would have to establish that he or she came within – is it rule 1A?

MR DEAKIN:   Yes.  Well, then we accept that ‑ ‑ ‑

GAUDRON J:   And service, but that was all at that stage.

HAYNE J:   And do that by reference to the pleading.

GAUDRON J:   Yes.

HAYNE J:   Establish the existence of the claim falling within 1A by reference to the statement of the plaintiff’s claim.

MR DEAKIN:   Yes.  Well, accepting that proposition, then, your Honours, there is a test required to be satisfied by reference to the pleadings, as your Honour Justice Hayne says, that a provision at least within 1A is satisfied.

GAUDRON J:   Otherwise there is no jurisdiction.

MR DEAKIN:   Yes, yes.  Now, that involves an assessment of the situation.  Now, if your Honours are against us ‑ ‑ ‑

GAUDRON J:   Well, not necessarily.

MR DEAKIN:   Well, with respect, it either must be a meaningful determination of whether the rule is satisfied or not or it is a rubber‑stamp operation and we submit that Voth is authority for the fact that, if leave is required, the provisions of the rules have to be positively established.  Well, we submit that may be a better way of phrasing it, if your Honours are against us on the good arguable case standard.

GAUDRON J:   Yes, the compliance with – the falling within rule 1A has to be established.

MR DEAKIN:   Yes, affirmatively established, I think, is perhaps the language that was used in Voth.  Well, in determining whether the provisions of the rules in this case are affirmatively established one needs to look at whether the facts as pleaded support the elements of a cause of action in tort.

GAUDRON J:   Well, or do we?

MR DEAKIN:   Well, we submit yes, otherwise the leave requirements are able to be discharged without the matter being properly analysed at all and a defendant who may have no connection to the jurisdiction at all and who may have a totally untenable claim asserted against it will be put to the expense of having to come here and defend the case and that cannot be what these rules are intended to achieve.  Justice Hayne has put to us that the defendant takes the same consequences as any other defendant who chooses not to appear in a court but, given the historical basis of the old common law rules, as your Honour Justice Gaudron has corrected me, it was limited to defendants within the jurisdiction at the time of service but generally limited to defendants within the jurisdiction. 

What reason is there to read these new rules as saying, “Well, essentially we do away with all the old common law requirements and we enable any plaintiff within the jurisdiction to bring any defendant, located anywhere in the world, before this court without some assessment being made as to whether the cause of action disclosed in the proceedings is made out within the rules”?  And we submit ‑ ‑ ‑

HAYNE J:   Could I suggest the answer is because once the court has asserted a long-arm jurisdiction, the relevant question then becomes to examine precisely the terms on which that assertion of long-arm jurisdiction is made and, relevantly, that is the rules and nowhere else, and the rules unencumbered by a notion that defendants, subject to long-arm jurisdiction are to be treated in some specially favoured way over and above whatever special favours or special position they may be given by the assertion in the rules of that jurisdiction.

MR DEAKIN:   What your Honour and your Honours, perhaps, are putting to us is, of course, flatly contradicted by the Bank of America Case because a similar proposition was advanced by counsel in that matter and the Court of Appeal flatly rejected it.  They said it did not abolish the requirements that jurisdiction be established under rule 1A; it simply reversed the procedure, namely instead of having to get leave in advance ‑ ‑ ‑

GUMMOW J:   I do not think anyone is suggesting that to you, Mr Deakin.

MR DEAKIN:   I am sorry, your Honour?

GUMMOW J:   I do not think anyone is suggesting that rule 1A is abolished.

MR DEAKIN:   No, no, but ‑ ‑ ‑

GUMMOW J:   The question is, on what materials does one assess whether the action falls within the criteria?

MR DEAKIN:   Yes, but the drastic and revolutionary effect which ‑ ‑ ‑

GUMMOW J:   It would not be revolutionary at all.

McHUGH J: I do not see why you regard it as so revolutionary.  Back in 1899 the Common Law Procedure Act said that you could serve a summons out of the jurisdiction and a time for appearance was given and section 18(3) in that Act said that:

The Court or a Judge, upon being satisfied by affidavit –

(a)  that there is a cause of action –

et cetera, et cetera, et cetera, could give you leave to proceed.

MR DEAKIN:   Yes.

McHUGH J:   Now, in 1957 in New South Wales that section was repealed.  That was replaced by a section which provided that you could serve the writ out of a summons and if the defendant did not appear, then the judge, “upon being satisfied”, might permit you to sign interlocutory judgment if the judge was satisfied that there was a cause of action.

MR DEAKIN:   Yes, well ‑ ‑ ‑

McHUGH J:   Against that background, it does not seem to me surprising at all that you can serve out of the jurisdiction.

MR DEAKIN:   We are not concerned about the serving out of the jurisdiction.  What causes us concern in what is being put to us from the Bench is that the process seems to eliminate the requirement of the court being affirmatively satisfied that a cause of action is made out. 

GAUDRON J:   Well, it has to be affirmatively satisfied – I think your submission was “affirmatively satisfied that it falls within rule 1A”.

MR DEAKIN:   Yes.

GAUDRON J:   Where do you get from that that a cause of action is made out, and what do you mean by that?  If you mean that there is a pleading that on its face is not demurrable?  On its face is - what do you mean?  You wish positively to establish the entire cause of action?

MR DEAKIN:   The elements of the cause of action relied upon from the rules must be affirmatively established.

GAUDRON J:   Or pleaded.

MR DEAKIN:   From the pleadings.

GLEESON CJ:   A possible point of view is that paragraph (a) and paragraph (e) of rule 1A raise questions as to the character of the proceedings, not as to their substance or strength.

MR DEAKIN:   Well, those words are indistinguishable from the English rules; I think if they are not absolutely identical, I think they are indistinguishable from the English rules appearing in Order 11, and they have always been interpreted, we submit, as requiring something more than the mere characterisation, with respect.  They require, under the English authorities, the elements of the cause of action to be established and even though, as we all know, the English rules have provided a different mechanical framework ‑ ‑ ‑

GUMMOW J:   It is more than mechanical, a conception.

MR DEAKIN:   Well, I am sorry, your Honour; a different series of steps being laid out, the jurisdictional wording is materially indistinguishable, and in determining whether the jurisdictional gateways have been satisfied, the English authorities confirm, and we submit that the same words are being used here, the same principles must apply, that the elements of the cause of action need to be established.  Now, English authorities have also said, consistently, that one does not attempt a trial of the proceedings, one does not attempt ‑ ‑ ‑

GUMMOW J:   No, you have got some sort of strange hybrid otherwise unknown to the law.

McHUGH J:   Yes, I do not understand that.  Why, if your argument is correct, does not the plaintiff have to go all the way?

MR DEAKIN:   Because, your Honour, it is not appropriate for him to be required to do that, at this stage.

McHUGH J:   Why is it not appropriate?

MR DEAKIN:   Because it is not a trial.

McHUGH J:   That is a gloss you have put on.

MR DEAKIN:   No, but, your Honour, we submit that those rules are the same as the English rules and we can safely assume they were borrowed from the English rules.  Those English rules have always had the meaning, as interpreted by the English authorities, that one needs to look to the elements of a cause of action.

HAYNE J:   Let me take it outside the area of tort.  Foreign defendant, contract made within the State, breached within the State, for a liquidated demand; the kind of action which, at least, under some rules of court you would be entitled to enter judgment administratively for the sum claimed.  With the injection of a foreign defendant, what proof do you say the plaintiff must embark upon before obtaining leave to proceed to the further step of entering judgment in default of appearance?

MR DEAKIN:   The elements of his claim in contract, namely contract, breach ‑ ‑ ‑

HAYNE J:   And must put on evidence which would establish affirmatively each of the elements of the cause of action?

MR DEAKIN:   Well, evidence is a different ingredient, your Honour; we accept that evidence is a more difficult area to embark upon.

HAYNE J:   Then is it sufficient that the plaintiff in my hypothetical case have pleaded the relevant facts or must the managing director of the plaintiff or the plaintiff him or herself go on oath and say, my pleading is right?

MR DEAKIN:   We submit that it is necessary for the Court to be able to analyse the pleadings sufficiently for it to be satisfied that the cause of action is properly made out.  It must be something more than a strike‑out application, with respect.  It must be something more than what would survive a strike‑out application because every defendant is entitled to bring its strike‑out application.  If the case is unarguable, unsustainable on any view, a foreign defendant is in the same category as a local defendant.

HAYNE J:   No, a foreign defendant is not until the foreign defendant has submitted unequivocally to the jurisdiction.

MR DEAKIN:   But he can do that effectively through an 11.8 application, your Honour, because 11.8 includes an entitlement to be able to say this case is unarguable.  So it must be something different to that if leave is still required.  We submit that leave is required – there is no dispute of course that leave is required – but that in satisfying a court that leave is required, some analysis of the elements of his or her cause of action is required.

GUMMOW J:   Mr Deakin, am I right in thinking that, I think, from 1988 there was a requirement of verification of pleadings in New South Wales under the Supreme Court Rules?

MR DEAKIN:   There is a requirement.  I am not sure when it was introduced, your Honour, but it is not universal.  In fact, in personal injuries actions, I am not sure it has ever been done but it certainly ‑ ‑ ‑

GUMMOW J:   It can be checked.

MR DEAKIN:   Yes.  In commercial cases, as your Honour no doubt has in mind, there is a requirement and it is ordinarily part of the directions that are given in commercial cases, but in personal injuries cases ‑ ‑ ‑

GUMMOW J:   No.  Anyhow, it can be checked.

MR DEAKIN:   We can check that, yes, your Honour.

McHUGH J:   But look at page 25 of volume 1 in the statement of claim, paragraph 15:

The injury to the Plaintiff was caused by the negligence of the persons responsible for the conduct of the Council of the IRFB –

et cetera.  Why does that not show a proper cause of action?

MR DEAKIN:   Because one needs to look at whether it is a case that is recognised at law in which a duty of care constituting a claim in negligence has been held to exist, or alternatively ‑ ‑ ‑

GAUDRON J:   Why?  That means ‑ ‑ ‑

MR DEAKIN:   Can I give your Honour the second answer.  The reason why that claim is not available as a matter of law is because at the date of this application for leave to proceed, the proceedings against both defendants were statute barred, and that was a total answer to a claim in negligence.

McHUGH J:   Why?  It was not a complete answer.  It depends upon what the theory of the section is.  If the section extinguishes the cause of action, that is one thing, otherwise it is just a procedural remedy that can be pleaded.

MR DEAKIN:   We will have to look at Mewett’s Case, as your Honour is obviously aware, but it is at least extinguished at that point, whether finally extinguished with the proceedings able to be later – or whether it is extinguished with the proceedings able to be later ‑ ‑ ‑

McHUGH J:   Yes, but the point is not whether or not you have a defence by way of confession and avoidance or otherwise.  I mean, supposing we were back in the pre-1970 days of New South Wales and it had a declaration which just simply says that the defendant so negligently and carelessly conducted itself in and about the control of the game of rugby union that it caused injury to the plaintiff whereby he suffered damage, et cetera.

MR DEAKIN:   My answer to your Honour - we still go back to my limitation point, with respect, because - and it is requiring careful analysis to understand this point.  A defendant can only appear, under the rules that we looked at, to defend a limitation application after filing an appearance in the matter and no one, we would respectfully submit, would suggest that a limitation application should be determined ex parte, and Mr Justice Badgery-Parker in this case was very careful in granting the leave that he did to join these foreign defendants to preserve their right to have the benefit of a limitation defence, and he did so.

The limitation - and at the time he granted the amendment to the statement of claim to join these defendants, both sets of proceedings were statute barred.  That was an answer to both sets of proceedings and the limitation point could not be determined as a jurisdictional issue.  It could not be determined at any stage until after leave had been obtained for the proceedings to be allowed to proceed or the defendant had submitted to the jurisdiction.

GAUDRON J:   Maybe that is something that might possibly be brought in an application under Order 10 rule 6A.

MR DEAKIN:   It is a matter which falls within Order 10 rule 6A, we would respectfully submit.

GAUDRON J:   Well, it may be, yes, but that does not mean that it falls within rule 2.

MR DEAKIN:   No, but the starting point for rule 2 is a cause of action and the cause of action by operation of section 63 is extinguished.  It may not be finally and absolutely extinguished, but it is extinguished at that point and the defendant cannot be heard on any application to extend the limitation period until after either the plaintiff is given leave to proceed ‑ ‑ ‑

GAUDRON J:   Yes, I realise that.

MR DEAKIN:   I withdraw that.

GAUDRON J:   But it is very difficult to read – let us take subrule (1)(d), for example.  How can you read into that any necessity to satisfy anybody on an application for leave to proceed that there is no limitations problem with respect to it?  I mean, I just do not see how you can read it in at that point.

MR DEAKIN:   Because there is either a cause of action in tort or there is not.

GAUDRON J:   No, it does not say anything about a cause of ‑ ‑ ‑

McHUGH J:   It says “the proceedings are founded”.

GAUDRON J:   It does not say that.

MR DEAKIN:   Well, it does say that the proceedings are founded on a tort but, your Honour, it must be a tort, we would respectfully submit, which is open to the plaintiff to rely upon.

GAUDRON J:   But it is always open to a plaintiff to rely on a tort whether or not subject to a limitation period, is it not, because the defendant may not plead it?  The defendant may be an honourable and generous person who says, “I was wrong and I know it’s out of time.  I’m not going to take the point”.

HAYNE J:   And this is about assumption of jurisdiction.  It is not about determination of issues joined.

MR DEAKIN:   But, your Honour, I perhaps have not made the point as clear as I should in relation to the limitation point.  Jurisdiction under 1A(1) must be established to a level at that time.  Neither the plaintiff, pursuant to some application to extend the limitation period, can proceed in the case because rule 2 prohibits it, nor can the defendant appear to contest a limitation application because he is also prohibited if he does not submit to the jurisdiction.  So the point of the action being barred at the jurisdictional stage of the inquiry has to be accepted, with the greatest respect, because it is ‑ ‑ ‑

CALLINAN J:   Mr Deakin, why cannot the potential defendant point to and seek to rely upon, as a relevant matter, any legal defence which might appear to be available to him?

MR DEAKIN:   Indeed, he can, with respect.

CALLINAN J:   Because obviously leave is required.  Some matters are relevant.  One does not have the right to proceed.  I cannot understand how the argument could be in a vacuum of possible legal defences.

MR DEAKIN:   We would respectfully adopt what your Honour has said and, putting it the other way, a plaintiff should not be granted leave to proceed if there is some legal defence available to him.  That is what Lord Porter in The Brabo.

CALLINAN J:   Particularly if a party in your position is asserting that it will rely upon it.

MR DEAKIN:   Yes, and we would respectfully adopt that, but the limitation point is perhaps clearer because the Act operates under section 63 to have the effect that we have been outlining and, until a limitation application is permitted, the effect of section 63 cannot be altered, with respect.

GLEESON CJ:   Mr Deakin, do the rules contain a provision for a defendant to apply to set aside leave that has been granted under rule 2?  I think they used to, unless I am mistaken.

MR DEAKIN:   Well, (j) does provide a broad power under ‑ ‑ ‑

GLEESON CJ:   (j) of?

MR DEAKIN:   Part 11 rule 8, your Honour, incorporate into 6A.  It does provide for “such other relief”.

GLEESON CJ:   It is my recollection that the form of the rules that preceded this contained a provision for the defendant to seek to apply to have the leave set aside and that was one of the reasons why, in Voth, it was said that there must be a congruence between the principles relevant to the grant of leave and the principles relevant to the defendant getting the leave set aside.

MR DEAKIN:   Yes, I think your Honour might be correct on that but, your Honour, the reason for that was because the pre‑1988 application, of course, was ex parte and although Part 10 rule 2 contemplates the possibility of it being ex parte, we know in this case it was not - not in the strict sense at any rate but, your Honours ‑ ‑ ‑

GLEESON CJ:   Most of the Supreme Court Practice contain the comforting assertion that it is safe to assume that the considerations relevant to an application under Part 11 rule 8(1)(h) include considerations relevant to the strength of the plaintiffs’ case – I am sorry, more accurately, the apparent strength of the plaintiffs’ case.

MR DEAKIN:   Yes, because there is an abundance of authority that says at least in the exercise of the discretion, which both rules clearly provide for, the strength of the plaintiff’s case is a relevant factor.  Now, again, that is a separate strand to the argument that one must look at something more than the bald assertions made by the plaintiff.

MR DEAKIN:   Your Honour, we will endeavour to deal with that when we come to deal with discretion.

GUMMOW J:   One has to write a judgment and one has to say whether Justice Grove erred in the exercise of his discretion.  That is what the bottom line is.

MR DEAKIN:   Yes.

HAYNE J:   And the relevant premise for the operation of paragraph (i) is that there is an action regularly constituted to which the person whom it is sought to be joined would be a proper party and it means then that in an action otherwise regularly constituted will, if your submissions are right, go on absent a party who would be properly joined.

MR DEAKIN:   Because there are two things we want to say in response to that.  Firstly, this rule does not, in turn, refer to proper party.  We understand that is what the English provisions refer to, but it does deal with proper joinder.  It may not matter that much but it is important to recognise that that is different wording.

HAYNE J:   But the premise relevantly is that the proceedings are properly brought against a person served or to be served in the State.  So you have an action regularly constituted.

MR DEAKIN:   Yes, indeed, and we do not dispute, of course, that this is an action properly instituted against defendants within the jurisdiction.  The question is whether the overseas defendants are properly joined and the authorities, we would respectfully submit, establish that a party is not properly joined if the action is bound to fail.  That is what was decided in The Brabo Case (1949) AC, and it was applied by the Court of Appeal in the judgment of the Multinational Gas Co Case that we have given your Honours reference to.  If the proceedings are bound to fail because there is a limitation defence and, your Honour, because of all of the other reasons we have outlined going to duty of care, and we do emphasise that, one must look at the duty of care ‑ ‑ ‑

HAYNE J:   I understand that branch of your argument and I understand the force of it.

MR DEAKIN:   Yes.  If the action is bound to fail on any ground, whether it be limitation point; duty of care point; or anything else, then the party is not properly joined and that is what The Brabo establishes.  But I think we have, perhaps, spent longer on it than the point warranted.

McHUGH J:   Can I put this to you about the question of duty?  That control is a key component in many cases in determining whether or not a duty of care exists, why is not the proper way to look at this case, that the defendants jointly and severally had a general care and management of the game of Rugby Union played in games organised by the member Unions and associate member Unions, and that being so, they have a duty to take reasonable care to avoid the risk of unnecessary risk of injury to players, having regard to the nature of the game of Rugby Union?

MR DEAKIN:   Can we emphasise that is not the case that has been pleaded or particularised.

McHUGH J:   Why is it not the case that it is not pleaded in paragraph (c) on page 26 which you said really was not a particular?

MR DEAKIN:   It is a statement of the duty that is alleged.

McHUGH J:   If you look at it in that way, there may be questions of proving breach, but why is not a duty owed in the same way as the organisers of a car racing contest in the Haringey Arena Case and similar cases have been held to owe duties of care both to participants and sometimes to spectators?

MR DEAKIN:   Because there was a sufficiently direct and close relationship in those cases between the event and the defendants, specifically close and direct, usually present at the time.  This is a remote and extremely remote relationship.

McHUGH J:   But why would you say that?  Would it not be possible for an Australian player, for example, to have standing to bring a restraint of trade action against members of the Board as was done in cases like Greig v Close about cricket?  Were not some of the players who were involved in that action Australian players as well as English players?

MR DEAKIN:   To be honest, I am not familiar with that case, I am sorry, your Honour.

GAUDRON J:   But is it not the case that somebody here in Australia adopts these rules rather than that the rules are promulgated?  Is it not in answer to what – partial answer?  You have to focus on – well, I do not know what these games were but I can tell you for my part I would not think that there was any obligation on schools who organise an inter‑school rugby series to adopt these rules.

GLEESON CJ:   On the contrary.  It is my recollection that schools played under a set of rules that were different from what were called international rules.

MR DEAKIN:   Yes, absolutely.

GLEESON CJ:   It was the international rules that applied to kicking, for example.

GAUDRON J:   Now, when Sydney Rugby organises whatever it is that goes on, if they adopt the rules, that must be their decision.  I would have thought that the rules do not of their own force have any effect, do they, except they may have force for international games.

MR DEAKIN:   Yes, yes, and more importantly, could we add to what your Honour has said the fact that the responsibility of the individual appellants cannot extend to those matters. 

McHUGH J:   No, except what Justice Gaudron put - you see there may – and I do not know whether the evidence establishes it, but it may well be that there is a connection right through.  In other words, the member unions and associate member unions agree to be bound by these rules and bind their players to it.  Although there may be no direct contractual relationship between a player and the International Rugby Football Board, in the real world, the Rugby Football Board exercises real power, just as in Buckley v Tutty and cases like that, although there was no direct contractual situation, it was nevertheless held that players had sufficient standing to obtain injunctions against these unincorporated bodies and so on, because the reality is that they exercise power over them.

MR DEAKIN:   Well, your Honour, we ask this rhetorical question:  what is the act on the part of these individual appellants that it is said is in breach of the ‑ ‑ ‑

McHUGH J:   Because they control and they are having the game played.  Control is a key element; for the gaoler owes a duty of care to the prisoner, the school teacher, the parent.

MR DEAKIN:   That is not what the case has been particularised as and ‑ ‑ ‑

HAYNE J:   The mirror of Justice McHugh’s question which may be added to it is apropos of reliance and I understand the evidence to which you have taken us, but reliance in the form which says, “I rely on the rule makers, I do not know who they are, and frankly I do not much care who they are, but I rely on the rule makers of the game that I play to do what is reasonable to guard me against risk”.

MR DEAKIN:   Well, again, your Honour, that is not the way the case has been put against us.  It is a case specifically directed to a failure to amend at meeting and this case, we would submit, in fairness to both parties, can only be determined on the case as pleaded and particularised.  They had many attempts of putting the case in final form, and this is the final form of the case.  Whilst your Honours can well imagine, no doubt, other ways in which the case could be put, in fairness to all parties we would ask your Honours to deal with it on the way in which the case is put, and it is not put, with the greatest respect, in the way either Justice McHugh or Justice Hayne has put it to us.

GLEESON CJ:   Mr Deakin, can I ask you a question about the Supreme Court Rules.

MR DEAKIN:   Yes, your Honour.

GLEESON CJ:   In the form of the rules with which we are concerned, is there any rule that provides for leave to serve originating process, as distinct from leave to proceed following service?

MR DEAKIN:   Not that I am aware of, and I think I can tell your Honour, I do not think there is any.

GLEESON CJ:   Well then, what is Part 11 rule 8(1)(d) directed to?

MR DEAKIN:   I think, your Honour, what happened was that the – I do not know the answer to your Honour’s question.  Part 11 rule 8 predated the 1988 amendments except with the exception of subsection (3).

GLEESON CJ:   According to my notes, the notes to this common practice book that we have, subrule (1) of rule 8 was amended in December 1988.

MR DEAKIN:   I think it only added eight, your Honour.  Can I take that on advisement overnight?

GLEESON CJ:   Have a look at it overnight but it may be that paragraph (d) is a hangover from the ‑ ‑ ‑

MR DEAKIN:   Yes, I think it is, your Honour.

GLEESON CJ:   But it is the counterpart of the earlier rule that I had in mind that provided for making an application to discharge an order giving leave to serve originating process outside the State.

MR DEAKIN:   I think it might be a hangover, your Honour.

HAYNE J:   Part 11.8(1) to (d) seemed to be identical with the form in which they originally passed in the schedule to the Act.

MR DEAKIN:   Yes, I think that is right.  So it is a hangover, it appears, from a part that was otherwise eliminated but they still left (d) in.

GLEESON CJ:   And is now otiose.

MR DEAKIN:   Well, I think it is, your Honour, yes.

GLEESON CJ:   Is that a convenient time?

MR DEAKIN:   Yes, your Honour.

GLEESON CJ:   We will adjourn until 9.30 tomorrow morning.

AT 4.16 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 23 MARCH 2000