Bell Group N.V. (In Liquidation) & Anor v The State of Western Australia; W.A. Glendinning & Associates v The State of Western Australia; Maranoa Transport Pty Ltd (In Liq) & Ors v State of Western Australia & Anor

[2016] HCATrans 74

[2016] HCATrans 074

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S248 of 2015

B e t w e e n -

BELL GROUP N.V. (IN LIQUIDATION) ARBN 073 576 502

First Plaintiff

MR GARRY TREVOR AS LIQUIDATOR OF BELL GROUP N.V. (IN LIQUIDATION) ARBN 073 576 502

Second Plaintiff

and

THE STATE OF WESTERN AUSTRALIA

Defendant

Office of the Registry
  Perth  No P63 of 2015

B e t w e e n -

W.A. GLENDINNING & ASSOCIATES PTY LTD (ACN 008 762 721)

Plaintiff

and

THE STATE OF WESTERN AUSTRALIA

Defendant

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

Directions hearing

BELL J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO PERTH

ON THURSDAY, 24 MARCH 2016, AT 5.01 PM

Copyright in the High Court of Australia

____________________

MR A.A. D’ARCY:   May it please the Court, I appear for the plaintiffs in action S248 of 2015.  (instructed by Lipman Karas)

MR A.K. SHARPE:   May it please the Court, I appear for W.A. Glendinning in P63 of 2015.  (instructed by DLA Piper Australia)

MR J.C. VAUGHAN, SC:   May it please the Court, I appear for the plaintiffs in P4 of 2016.  (instructed by Ashurst)

MR G.R. DONALDSON, SC, Solicitor‑General for the State of Western Australia:   If your Honour please, I am for the defendants in all matters, except for the second defendant in P4.  (instructed by State Solicitor (WA))

HER HONOUR:   Yes, and the second defendant in Proceedings P4 has filed a submitting appearance.

MR DONALDSON:   Yes, that is correct, your Honour.

HER HONOUR:   Yes, thank you, Mr Solicitor.  Yes, Mr D’Arcy.

MR D’ARCY:   Your Honour, firstly, can I thank your Honour for listing the matter this afternoon, no doubt at a time of great inconvenience to your Honour and to the Court staff.  It is greatly appreciated.  The reason we are here is that notwithstanding the clear and unambiguous orders that were made for the filing of submissions limiting the defendant to 40 pages, we have received a submission of 120 pages.

HER HONOUR:   I think I understand that issue and I will take it up with the Solicitor‑General.  Before doing so, may I inquire, as I understand it, the Bill proposing to amend the Bell Act has now been read a second time in the Legislative Assembly and I believe the parties have now received a copy of it.  Is it, from your perspective, Mr D’Arcy, likely to cause any difficulty in terms of retention of the hearing date?

MR D’ARCY:   No, your Honour.  For the reasons explained at the first directions hearing it is important that a judgment be delivered in this matter as early as 9 May because that is the timetable the State is working to, so an adjournment ‑ ‑ ‑

HER HONOUR:   Yes, I understand.

MR D’ARCY:   We will not be seeking one, and we will be vigorously opposing any application.

HER HONOUR:   Yes, thank you.  Yes, I might just inquire about the attitude – firstly, Mr Sharpe, is there any matter you wish to put in relation to the suggested prejudice arising from the form of the submissions filed on behalf of the State?

MR SHARPE:   Your Honour, we agree with BGNV’s position regarding the length of the submissions.  We have not brought our own application on and our position is that we do not independently seek lifting and refiling of the submissions but that if an order of that kind is made in BGNV’s proceedings then the equivalent order should be made in our proceedings, your Honour.

HER HONOUR:   Yes, thank you.   Mr Vaughan, what is the position of Maranoa in this respect?

MR VAUGHAN:   We do not seek an order that the State uplift and then refile submissions.  We are concerned that were it to do so it would actually be more burdensome to us because we would have less time to put on our reply submissions.  We will lump what we have been provided with and reply to it, your Honour.  Our concern is more to do with the amendment Bill and what that might mean for the hearing date.

HER HONOUR:   I see.  I have not had an opportunity to absorb the effect of the amending Bill, save to note that Maranoa features in it.  Do I understand that it, in your submission, has a significant impact?

MR VAUGHAN:   Yes.

HER HONOUR:   Yes.  Well, before I take matters up with the Solicitor‑General, Mr Vaughan, appreciating that from Maranoa’s point of view the amending Bill if it become law will have a significant impact, BGNV’s position is a desire to keep the hearing date at all costs, having regard to the significance of 9 May date, as I understand it, being a date upon which it would be open to the authority to make a final distribution.  What is Maranoa’s position in that respect?

MR VAUGHAN:   The difficulty for Maranoa is that we have received this amendment Bill approximately an hour and a half ago.  We have not had an opportunity to properly consider it, nor to give advice and take instructions.

HER HONOUR:   Yes.

MR VAUGHAN:   But as we see it, Maranoa is a target of the Bill and effectively it would fold Maranoa in with the other WA Bell companies.  Now, if that is its effect, then it may well be that I am left without essentially a client or, more strictly speaking, the liquidator who gives instructions on behalf of Maranoa would no longer be entitled to do so.  We really need Easter to consider the point, to discuss it perhaps with the State, and what I had hoped was today I might be able to articulate that and suggest that we need to perhaps approach your Honour again next week with a firm position.

HER HONOUR:   Yes, I quite understand, Mr Vaughan.  Very well, thank you.  Mr D’Arcy, can I take this up with you?  I understand BGNV’s concerns about a submission that effectively is a 120 page submission.  What is put to me by Maranoa and perhaps not – well, Glendinning’s position is a little less clear but is in a sense to have the State uplift its submissions, re‑craft them - having regard to the tight timetable that we are facing, would be less convenient than accepting what has taken place and making the best of it.  What is your submission in response to that?

MR D’ARCY:   Your Honour, my submission in response to that is that it will actually – well, it will certainly assist BGNV in responding with reply submissions to have a targeted response to its submission.  Could I just illustrate with two examples very quickly?  Does your Honour have the responsive submission to BGNV’s submission?  This is the State’s submission in 248.

HER HONOUR:   Yes, I do.

MR D’ARCY:   If your Honour turns to page 40.

HER HONOUR:   Just bear with me one moment.  Yes.

MR D’ARCY:   Paragraph 175 addresses three contentions in lines 1, 4 and 6.  Paragraph 176 then goes on to start to deal with those and your Honour will see at line 11 the sentence:

This is also addressed below.

There is that.  Then, your Honour, you turn to the one point, the point that only BGNV makes in this action, this is found in the Glendinning submissions ‑ ‑ ‑

HER HONOUR:   This is the transitional provisions?

MR D’ARCY:   That is right.

HER HONOUR:   Am I right in understanding the amending Act might be seeking to address those submissions?

MR D’ARCY:   Yes, it is seeking to address those submissions.

HER HONOUR:   Yes.

MR D’ARCY:   So, your Honour, we actually do not know, it makes life impossible to respond to this.  It increases – I have not even finished reading the submissions yet.  I am halfway through the third.  I have read the other two.  Ordinarily, we are under a very tight timetable to respond and really the State should have complied with the orders which were clear and unambiguous.

HER HONOUR:   Yes, thank you, Mr D’Arcy.  Yes, Mr Solicitor.

MR DONALDSON:   Your Honour, the State’s position in relation to the submissions and the decision in relation to their form, your Honour, was taken by me, and, your Honour, the reason for it is – and I will not take your Honour to the submissions because they are dense, quite obviously, but there are, your Honour, identified a number of – or what are the principal issues that have been raised in all of the proceedings.  Some of the issues are taken by certain of the parties, others are taken by others, but in relation to most of the issues, your Honour, the three parties make submissions.

So, your Honour, rather than dealing with submissions in relation to, for instance, inconsistency of the Commonwealth taxation legislation, repeating submissions in each of the three sets of submissions and then dealing specifically with contentions that were raised it was thought more sensible and of greater assistance, both to the parties and the Court, to deal with it in this way.

HER HONOUR:   Can I raise with you one matter arising out of that, Mr Solicitor, and it is this?  The order, which itself was an indulgence, having regard to the ordinary rules relating to submissions, was that each party could file submissions not exceeding 40 pages, developing their argument.  As I understand it, there are three substantial issues:  the inconsistency with the taxation legislation; the inconsistency with the corporations legislation; and, the inconsistency with the Judiciary Act to which is allied a repugnancy under Chapter III argument.

Common to BGNV’s proceeding and Glendinning’s proceeding are all three arguments, common to the Maranoa proceedings are the first two of those arguments.  The State has in the way things have fallen out developed its argument over 120 pages in response to what are, in essence, the same three arguments.  I appreciate that BGNV has a discrete argument concerning the effect of the transitional provisions under the corporations legislation and its impact on section 25 of the Bell Act.

Putting that discrete argument to one side, the arguments have a great deal in common and the State has developed its response over 120 pages and BGNV complains, as I apprehend it, firstly, that is simply unfair, it prejudices BGNV because it has not had the opportunity to write a textbook and, secondly, it does not have submissions that are responsive to its submissions in terms of its reply.  Now, on the face of it, there is force to those complaints.

MR DONALDSON:   Well, there are two issues in that, if I might say with respect, your Honour.  The first of them is whether the effect of the orders was that we have 40 pages or three lots of 40 pages to respond.

HER HONOUR:   Well, you have three lots of 40 pages, that is, it was open to the State to put in submissions in response to the submissions of the plaintiff in each of three proceedings, but that necessarily, one would think, carried with it that the submissions would be responsive to the submissions filed in each proceeding.  Added to that, I had indicated at the directions hearing on 8 February the trust, given the commonality of issues, that there would not be undue duplication.

So, Mr Solicitor, when I see in the letter that you sent to the Deputy Registrar today reference to the approach adopted, for example, in the Glendinning submissions, that does not seem to me to be comparable.  What Glendinning did in its submissions – if I can just turn them up, in the matter in footnote 1 to which you referred – was to say that they had prepared their submissions on the understanding that the matter would be argued with the separate but related proceedings and to record its agreement and its agreement with the liquidator, Mr Woodings, and with BGNV that save for issues on which the plaintiff in Glendinning relied, which it did not consider had been covered sufficiently, it would rely on the written and oral submissions of Woodings and BGNV.

That is an understandable approach in the background of these proceedings but it does not seem to me to assist your argument in meeting BGNV’s complaint that there is prejudice to it in the approach that the State has adopted.

MR DONALDSON:   Well, your Honour, all that I can say to your Honour is that we have certainly not sought to subvert the intention of the orders, firstly, and secondly, your Honour, it occurred to me that it would be of greater assistance, both to the parties and to the Court, if each of the arguments in relation to each of the broad issues – and if I might just pause there, your Honour, to observe that within each of the broader issues that your Honour has described there are a number of separate contentions which are put by some parties and not by others.  So, your Honour, it occurred to us that it would be of most assistance to deal with the issues in the order in which we have dealt with them and to deal with each of the contentions of each of the parties in relation to that issue in the way that we have done.

Now, your Honour, if that has caused difficulty to BGNV, your Honour, and it requires a precise identification of the matters that are responsive to its submissions, specifically, on an understanding that presumably counsel are not interested in matters raised by other parties, then we can identify that for them, your Honour.  I can send my friend an email today saying, these are the paragraphs in the combined submissions that relate directly to the BGNV matters, and that would accommodate my learned friend, it would also accommodate Mr Vaughan’s position, who does not want a different set of submissions, and ‑ ‑ ‑

HER HONOUR:   As I understand things at the present time, Mr Solicitor, Mr Vaughan’s position is that when he has an opportunity to absorb the amending Bill that may have some significant implications which will be occupying Mr Vaughan and those who instruct him such that this fades, as it were, as a concern, that is, the question of the regularity of the submissions.  I am not sure that an email from you saying these are the issues in BGNV’s case with which we take issue is going to resolve the situation.

MR DONALDSON:   If your Honour wishes me to amend the submissions so that they are responsive to the submissions of each of the respondents, your Honour, I will do it.

HER HONOUR:   Well, Mr Donaldson, subject to hearing further from Mr Vaughan about precisely what it is that Maranoa seeks, that is my inclination in relation to the position with BGNV and Glendinning.  Now, I rather take it, Mr Solicitor, people are likely to be working over the Easter break.  What is practicable, from your point of view, in terms of providing responsive submissions not exceeding 40 pages in each of the Glendinning and the BGNV proceedings?

MR DONALDSON:   Your Honour, I am sure that that can be done by close of business tomorrow.

HER HONOUR:   Excellent.  Yes, very well.

MR DONALDSON:   Could I just mention, your Honour ‑ your Honour mentioned my learned friend Mr Vaughan’s position arising out of the amending legislation, or the Bill that has been presented to Parliament.  Your Honour, the position in relation to that is I have indicated to my learned friend, Mr Vaughan, that what I am sure would be of assistance to the parties is if there were a telephone conference first thing on Tuesday morning between the parties to see if a common understanding could be arrived at as to the way in which those issues are best dealt with.

HER HONOUR:   Yes.

MR DONALDSON:   I understand that that is my learned friend Mr Sharpe’s position as well.  I have not had an opportunity to speak to my learned friend, Mr D’Arcy, about that.  Then, your Honour, the parties will know where they stand in relation to that matter and then if ‑ ‑ ‑

HER HONOUR:   That sounds very sensible, Mr Solicitor.

MR DONALDSON:   Then if necessary – I am sorry, your Honour, I think there is a slight lag.

HER HONOUR:   I was just going to raise a matter with you, Mr Solicitor, and it is this.  I understand that Mr Vaughan sees the amending legislation, should it become law, as perhaps presenting more pressing problems for him than an issue about the submissions.  Nonetheless, from the Court’s point of view, there is a question about submissions of the excessive length of those currently filed.  My inclination would be, subject to hearing further from Mr Vaughan, to require that responsive submissions be filed by the State not exceeding 40 pages in each of the three proceedings.  Does that present any difficulty in terms of the State’s capacity to respond by the close of business tomorrow?  I am sorry, did you say – or Saturday, was it?

MR DONALDSON:   I said tomorrow.

HER HONOUR:   You did say tomorrow.  Yes.

MR DONALDSON:   No, I was proceeding on that basis, your Honour, that is, that if your Honour was inclined to deal with the issue in that way then we will cut the submissions up and put them in the different form by close of business tomorrow.  Your Honour is, with respect, right that the issues in relation to Mr Vaughan’s client arising out of the Bill that is being presented is rather different from the position of the other two plaintiffs - that is, your Honour, we would see the Bill if it is enacted narrowing the issues with the other two plaintiffs but Mr Vaughan’s client’s position is a little different to that.

HER HONOUR:   That is as I understood it, yes.

MR DONALDSON:   So, your Honour, what we will do is we will reorder the submissions, as I have indicated, your Honour, and we will provide those to the parties by close of business tomorrow.  We will not be obviously in a position to file them until Tuesday, your Honour, but we will certainly get them to the parties tomorrow.  Then, your Honour, plainly we do not need an order to this effect but unless I hear otherwise from Mr D’Arcy, your Honour, the parties will convene on Tuesday to see the best way forward in relation to the amendment.

HER HONOUR:   Yes, thank you, Mr Solicitor.

MR DONALDSON:   Can I say, your Honour, I do not wish to be making speeches, but we prepared the submissions in the way that we did with a genuine desire to seek to assist your Honour rather than to seek to subvert an order that your Honour made but, in any event, your Honour ‑ ‑ ‑

HER HONOUR:   Mr Solicitor, that is understood.

MR DONALDSON:   If your Honour please.

HER HONOUR:   I trust, Mr Solicitor, you understand that from the Court’s point of view 40 pages is a considerable indulgence in terms of submissions, and 120 has its potential burdensome aspect, but I appreciate that the intention was certainly not to subvert the order.

MR DONALDSON:   No, your Honour.  We simply construed three lots of 40 in the way that we did – in any event, your Honour, we will deal with it in the way that I have indicated.

HER HONOUR:   Thank you, Mr Solicitor.  Mr Vaughan, I understand you have, as it were, more pressing concerns on your mind at the moment in light of the likelihood of the amending Act becoming law.  Nonetheless, to return to the question of the submissions, there is the further matter that I raised with the Solicitor and it is that to leave submissions of the length of effectively 120 pages is really not convenient, from the Court’s point of view.  So my inclination is to make an order in terms that the submissions be uplifted and that responsive submissions in each set of proceedings be filed.  Does that cause you particular difficulty?

MR VAUGHAN:   I understand entirely, your Honour.  What happens in one must happen in the other.  I can identify within the current set across the three matters which I have to deal with.  We thought it would simply be more burdensome to have to do the cut‑down version.  We are content with the course that your Honour has suggested.

HER HONOUR:   Very well, Mr Vaughan.

MR VAUGHAN:   I am not so sure about the order that it be done by close of business tomorrow because I had thought there was no business tomorrow, but no doubt that will be a matter for Mr Donaldson.

HER HONOUR:   That is a very fair point.  Mr Vaughan, I understand that all the parties are agreed to this telephone conference on Tuesday morning to assess where things are going in light of the amending legislation.  From something you said a little earlier I thought you might be seeking a further directions hearing next week.  Should that await the outcome of the telephone discussion?

MR VAUGHAN:   I am always inclined to have a backstop date, your Honour, but it might well be that we could simply approach you through the Registry.

HER HONOUR:   Yes.

MR VAUGHAN:   If it becomes obvious that a directions hearing is needed – I should just foreshadow at the moment it seems to me that there is a real possibility that that will be the case.

HER HONOUR:   Yes, very well.  Thank you, Mr Vaughan.  Unless there is anything further – Mr D’Arcy?

MR D’ARCY:   Your Honour should have a copy of our proposed minutes of order.

HER HONOUR:   Yes, I do.

MR D’ARCY:   Thank you, your Honour.

HER HONOUR:   Yes.

MR DONALDSON:   Your Honour, I am terribly sorry.  I do not wish this to degenerate into a seminar but my excessively cautious junior has insisted that I simply clarify this, your Honour, and I am mildly embarrassed to do so, but I trust that your Honour has taken from what I have volunteered that we may be cross‑referencing between submissions, as it were, and that that is not going to cause any party any particular difficulty – not cross‑referencing huge slabs, but we are not going to reproduce in three sets of submissions something that is common to all.  We will simply refer to it in the one set of submissions.  Is that what your Honour had in mind?

HER HONOUR:   I certainly had in mind that there would not be a need to duplicate arguments.

MR DONALDSON:   Yes, thank you, your Honour.

HER HONOUR:   But, Mr Solicitor, equally, what is contemplated is that the submissions in each set of proceedings are responsive to the submissions that the plaintiff has filed, that is, we do not find the same 120 pages turning up differently ordered.

MR DONALDSON:   Yes, your Honour.

HER HONOUR:   Very well.  There will be the following orders:  the defendant is to serve an annotated written submission strictly in response to the plaintiff’s submissions in each of the proceedings, not exceeding 40 pages, by 5.00 pm on Friday, 25 March 2016, those submissions to be filed when the Registry opens on Tuesday, 29 March 2016.  BGNV seeks an order for its costs of today.  Can you resist that, Mr Solicitor?

MR DONALDSON:   No, your Honour.

HER HONOUR:   The defendant is to pay the plaintiffs’ costs of today.  The Court will adjourn.

AT 5.30 PM THE MATTER WAS ADJOURNED