Attorney-General for State of SA v Holmes & Ors

[2004] HCATrans 556

[2004] HCATrans 556

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M138 of 2004

B e t w e e n -

THE ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA

Applicant

and

ISAAK HOLMES (BY HIS LITIGATION GUARDIAN SHARON HOLMES)

First Respondent

A. OLSSON

Second Respondent

WOMEN’S AND CHILDREN’S HOSPITAL

Third Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 DECEMBER 2004, AT 10.05 AM

Copyright in the High Court of Australia

__________________

GUMMOW J:   Mr Solicitor, you seem to have got yourself on both sides of the record.  How have you achieved that?

MR C.J. KOURAKIS, QC, Solicitor‑General for the State of South Australia:   By making use of the provision of section 5(7) of the Cross‑Vesting Act, if your Honour pleases.  I appear with MRS V. MARTINDALE for the applicant and, as your Honour has observed, the third respondent.  (instructed by Phillips Fox)

MR R.R.S. TRACEY, QC:   If your Honours please, I appear with my learned friend, MR F.D. SACCARDO, SC, for the respondent.  (instructed by Maurice Blackburn Cashman)

GUMMOW J:   The Court holds a certificate from the Deputy Registrar stating that she has been informed by Tress Cocks, Melbourne agents for Wallmans Solicitors, the solicitor for the second respondent, that the second respondent will submit to any order of the Court.  Yes, Mr Solicitor.

MR KOURAKIS:   If the Court pleases.  Your Honours, in my submission, significant errors of principle were made below.  They are fourfold and they appear clearly at paragraphs 5 and 9 of the Chief Justice’s reasons.

GUMMOW J:   Since this application was filed, we have delivered judgment in BHP v Schultz, as you know.

MR KOURAKIS:   Yes.

GUMMOW J:   Why then do we revisit a question which you have just clarified in our answer?

MR KOURAKIS:   This case would raise for closer consideration the application of section 5(2)(b)(ii) which was considered by your Honour Justice Gummow I think in paragraphs 60 to 62 but not given close attention by the other members of the Court, because in BHP v Schultz the application was based on (iii).  With respect, your Honours, given the decision in BHP handed down just several days ago and what, in my submission, are the plain errors here, what I ask this Court to do is to grant leave and allow the appeal, remitting the matter to be considered by the Supreme Court of Victoria in accordance with the ‑ ‑ ‑

HAYNE J:   Why would we do that at this stage of this litigation when your application, Mr Solicitor, was made at the stage of the litigation it was?

GUMMOW J:   Namely, a late stage.

MR KOURAKIS:   Your Honours, the first application – and I will come to the second in a moment – that was made and was dismissed by Justice ‑ ‑ ‑

GUMMOW J:   We are worried about the activity at the moment of the State of South Australia.

MR KOURAKIS:   Your Honour, the first application that was dismissed was made just one month after the proceedings were served.  This application was made some nine months later.  By that time the preliminary matters, pretrial preparation matters, pleadings and discovery, were much further advanced and more particular and detailed evidence about the length of the trial, the numbers of witnesses, their residence, the costs of the trial were able to be provided. 

GUMMOW J:   Is there now a trial date?

MR KOURAKIS:   Yes, your Honour.

GUMMOW J:   It is February, is it not?

MR KOURAKIS:   No, there was to be a mediation, and will still be, I suppose, in February, but a trial date has been set in the Victorian Supreme Court for October next year.  The pretrial preliminary matters have just about been completed.

HAYNE J:   Why would we interfere with a trial date, which would be the inevitable consequence?

MR KOURAKIS:   Yes.  On the basis of the preparation that has been undertaken in Victoria, the matter would be as ready to be set down for trial in South Australia as it ‑ ‑ ‑

GUMMOW J:   Look, Mr Solicitor, you come here representing the State of South Australia, intruding yourself into this litigation.  You say there is a point of principle.  It looks like a point of principle which is not necessarily in the interests of justice as between these parties into whose litigation you intrude but we ourselves would get involved with.  If and when another case arises where there is this point of principle replicated and you move promptly, that is another question.

MR KOURAKIS:   If the Court pleases, I appreciate the significance the Court attaches to the timing of this particular application.  I make the submission that the greater costs disadvantage involved in running a matter outside its most natural jurisdiction is at the trial stage.  The more obvious reasons for transferring a matter back to the jurisdiction where it more properly belongs is so that it can be adjudicated, determined on by a trial judge from that jurisdiction having all the advantages that a trial judge from that jurisdiction has.  I appreciate that it is late in the sense that the pretrial matters have largely been ‑ ‑ ‑

HAYNE J:   What are these advantages that the trial judge from the jurisdiction has?  I understand readily the costs benefits, detriments, et cetera for parties, but what is this about the trial judge?

MR KOURAKIS:   They were advantages of the type referred to by his Honour Justice Callinan in paragraph 259, for example, a familiarity with such local laws as might affect the question.  The place of the tort will of course apply, but there is also a familiarity with the simple geography of the place which might take quite some considerable evidence to be described in a court away from the jurisdiction.  Your Honours, that is not a fanciful suggestion in the context of this case.  A very real issue in this case is whether the second respondent was in a position to get to the hospital sooner, for example.  So there are very real advantages, in my submission, in terms of the efficient expedition of the trial to have the matter determined by a judge who is familiar with those matters.

Your Honours, the overwhelming proportion of any extra cost involved here in having the pretrial matters attended to in Victoria has been borne by the applicant.  The issue really is simply whether one legal team should go from Victoria to South Australia for the trial as opposed to two legal teams from Adelaide to Melbourne together with all the parties.

GUMMOW J:   Chief Justice Warren referred to the availability of video evidence, did she not?

MR KOURAKIS:   Yes.  Your Honours, the evidence ‑ ‑ ‑

GUMMOW J:   Various legislation is in operation between South Australia and Victoria, is there not, that permits this to happen?

MR KOURAKIS:   Yes, in both States evidence could be taken by video link.  In the affidavit of Mrs Martindale that was admitted before her Honour the Chief Justice, there was evidence that the cost of taking the evidence by video link would be exorbitant, would be much more than taking the evidence in South Australia.  That is because of the cost of the actual link together with the fact that the parties would still need to have legal representatives in both places.  The evidence showed clearly that the cost of the trial would be much greater if held in Melbourne than in Adelaide.  

Again I say, and I can understand the concern at the lateness and what her Honour the Chief Justice referred to as the momentum, but really the momentum is to say nothing more than that matters of pleadings and discovery have been attended to as to the costs of trial, and they are the costs that are most likely to be increased if the trial does not take place in the most appropriate forum.  As to the other reasons for having a judge from that forum decide it, those matters are still now open to be considered and very relevant even at this stage.  If the Court pleases.

GUMMOW J:   Yes, Mr Tracey.

MR TRACEY:   If the Court pleases, we submit that special leave should be refused for three reasons.  Firstly, neither of the reasons advanced by the applicant in the application to this Court, which appear at application book 72, retain any force following the decision of Schultz.  The Court may recall that what was urged was that a determination of this Court was necessary to resolve inconsistencies that had developed at intermediate court level.

The second reason is that this is not an appropriate vehicle because Chief Justice Warren’s references to the Cross-Vesting Act were obiter.  The decision turned principally on her acceptance of arguments based on principles expounded in DA Christie v Baker that relitigation of the application made to Justice Harper some months earlier should not be permitted.  That appears at paragraph 4 of her Honour’s reasons which are at 51 of the application book.  The third reason is that it remains open to the applicant to make ‑ ‑ ‑

HAYNE J:   That was a view that depended upon equating the Attorney with one of the parties, was it not?

MR TRACEY:   It was, your Honour, but not mistakenly, given that the instructor in both cases was the same and the principal affidavit came from the same deponent.

HAYNE J:   We noted the curiosity of the Solicitor appearing on both sides of the record.

MR TRACEY:   Yes, your Honour.  The arguments were substantially the same.  All that had happened the second time round was that the material had been beefed up a bit to contain some more evidence to support the propositions that have been put before Justice Harper in the first place.  Your Honours, the third reason is that it is open to the applicant to make fresh application to the Supreme Court without any intervention on the part of this Court on proper materials.  So that in the circumstances, we would submit that it is not appropriate that leave should be granted. 

We would add to that that the interlocutory steps in this matter have been concluded.  The matter is fixed for mediation in February, as the Court has heard, and for trial in October.  I should tell the Court that it would have been fixed earlier had it not been for an intimation on our friend’s side that the trial was likely to be of a greater length than we consider is likely.  The result was it went into the long causes list and therefore it was not able to be listed before October; otherwise it would have been listed earlier in the year.  So the matter is ready for trial, and for those reasons, if the Court pleases, we submit that this application should be refused.

GUMMOW J:   Yes thank you, Mr Tracey.  Anything in reply, Mr Solicitor?

MR KOURAKIS:   If the Court pleases, if it is accepted that another application could be made based on the decision in BHP v Schultz, in my respectful submission, there is some force in proceeding in the way in which I invited the Court, to grant leave and allow the appeal on this application.

GUMMOW J:   Nothing we are about to say will encourage any further application which will hold up the trial in this matter, Mr Solicitor.

MR KOURAKIS:   If the Court pleases.

GUMMOW J:   It would not be in the interests of justice, given the stage which has been reached in this litigation, for this Court now to intervene by acceding to the application for special leave to agitate the questions said to be still outstanding after the decision in BHP Billiton v Schultz delivered earlier this week.  Accordingly, the application is refused with costs.

We will adjourn to reconstitute.

AT 10.17 AM THE MATTER WAS CONCLUDED