Bell Group N.V. (In Liquidation) v Mr Garry Trevor as Liquidator of Bell Group N.V. (In Liquidation) and Anor

[2015] HCATrans 344

[2015] HCATrans 344

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

Directions Hearing

BELL J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO PERTH

ON WEDNESDAY, 16 DECEMBER 2015, AT 11.58 PM

Copyright in the High Court of Australia

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

MR G.R. DONALDSON:   May it please your Honour, I appear with my learned friend, MS D. VAN NELLESTIJN, for the defendant.  (instructed by State Solicitor’s Office (WA))

HER HONOUR:   Yes, Mr D’Arcy.

MR D’ARCY:   Your Honour, there is substantial common ground between the parties.

HER HONOUR:   On the material that I have seen, you are a week apart.  Has there been any resolution of that?  This is in terms of the timetable.

MR D’ARCY:   Yes, your Honour, in terms of a week here or there, we do not want to quibble about that.  The important date is the date it returns for its next directions hearing.

HER HONOUR:   Yes.

MR D’ARCY:   Your Honour, the reason for that is explained in the written submissions.  At least from our part, there is a degree of urgency in determining this matter as soon as possible.

HER HONOUR:   And ideally before 9 May 2016?

MR D’ARCY:   That is correct.

HER HONOUR:   Whether that can be achieved, Mr D’Arcy, is another matter, but what I can indicate for the benefit of the parties is it would be possible to list the matter in the first week of the April sittings.  That is on Tuesday, 5 and Wednesday, 6 April.  I say that because it seems to me, subject to anything you wish to put, that it is likely the matter might run into two days.

MR D’ARCY:   That is correct.  Two days is our estimate, your Honour.  Whether it takes a full two days or not is another matter.  Just on that topic, I have been asked by the solicitors for Mr Woodings who is the liquidator for the WA Bell companies to draw a matter to the Court’s attention.

HER HONOUR:   Yes.

MR D’ARCY:   That is that he has sought directions from the Supreme Court of Western Australia as to whether or not it is appropriate for him to either commence his own constitutional challenge in his capacity as liquidator of those companies, or apply for leave to intervene in this proceeding to do so.

HER HONOUR:   This is the matter that is presently reserved before Master Sanderson?

MR D’ARCY:   That is correct.

HER HONOUR:   Yes.

MR D’ARCY:   While the Master did not give any indication as to when he might deliver judgment, it is expected that it will be before the Christmas vacation.

HER HONOUR:   I see.

MR D’ARCY:   There are some potential problems with that application which I do not need to go into concerning Mr Woodings’ power as liquidator, given the operation of at least section 29 of the Act which prevents him from exercising any such power, but it may well be that if he does receive directions from Master Sanderson that is appropriate for him to either commence his own proceedings or intervene in this, that he will do so. 

We do not see that in any way as interfering with a hearing in the first week of the April sittings that your Honour indicated was available.  The grounds of challenge of Mr Woodings and another potential creditor who has also flagged an interest in bringing a challenge are essentially the same grounds, as we understand it.  So we do not see any difficulty in meeting that timetable, even if other parties did choose to intervene or issue their own proceedings.

HER HONOUR:   Just in relation to the proceedings before Master Sanderson, I think the position is that Bell Group N.V. sought to be joined to those proceedings and took the objection respecting Mr Woodings’ competence to bring them.  Is that so?

MR D’ARCY:   That is correct, your Honour, we were joined as a defendant and as an officer of the court, Mr Trevor felt it incumbent upon him to draw that issue to the attention of the court.

HER HONOUR:   Yes, so that matter was ventilated before the Master?

MR D’ARCY:   It was.

HER HONOUR:   Yes, very well.

MR D’ARCY:   So, your Honour, the long and the short of it is really it is the return date for the next directions hearing.  The defendants have proposed the 15th.  Ideally, we would like a date as soon as possible in the New Year just in case there is a need for an abbreviated timetable for filing submissions, et cetera.

HER HONOUR:   Yes.

MR D’ARCY:   So, if it was convenient to the Court, we would be seeking a hearing sooner than the 15th - if it was available 1 February, but obviously we are in the Court’s hands on that.

HER HONOUR:   Yes.  I might hear from Mr Donaldson.

MR D’ARCY:   Yes, your Honour.

HER HONOUR:   I should say, both the parties - I note that you are at one in submitting that it is not appropriate that the matter be remitted, and that seems to me to be plainly the case.  So, Mr Donaldson, what do you say?

MR DONALDSON:   Your Honour, having heard what my learned friend has had to say, in relation to the timetable, does your Honour have my learned friend’s summons with his dates in them?

HER HONOUR:   Yes, I do.

MR D’ARCY:   Your Honour, I am sorry to interrupt.  What I could hand up is a single document which reflects our summons and Mr Donaldson’s proposed dates on one page.

HER HONOUR:   Thank you, Mr D’Arcy, that would be very helpful.

MR DONALDSON:   Your Honour, if my learned friend’s real concern is when the matter comes back before your Honour or another member of the Court – and I am looking at 5 of his summons – we are content with 9 February, your Honour.  We had suggested the 15th, but the 9th is fine.  But working back from that, your Honour, that date of 9 February can actually accommodate the timetable that we have suggested because everything will be done – the final step will be in step 4 which will be on 5 February, and so we will be back before the Court on 9 February and we are content with that, your Honour, and we have heard what your Honour has ‑ ‑ ‑

HER HONOUR:   Well, I will just give this indication - 9 February is a date when the Court is sitting in Canberra.  That does not make it

impossible to have a directions hearing at – well, wait a moment, Mr Donaldson, if we are looking at a video link, that might be difficult in a Canberra week.  I think it would be.

MR DONALDSON:   Yes.

HER HONOUR:   So that tends to favour a date in the first week after the sittings, which would be the week beginning 15 February.  Bearing in mind that we are looking at dates either the first week of April - that is, 5 and 6 April – or the first two days of the second week of the sitting but, in light of the suggested urgency, more likely 5 and 6 April, a directions hearing on the 15th one would think could accommodate difficulty in terms of the unknowns as to interveners and the like.

MR D’ARCY:   Yes, your Honour, we would simply ‑ ‑ ‑

MR DONALDSON:   We would have thought ‑ ‑ ‑

MR D’ARCY:   Sorry, I was not quite sure whether your Honour was directing that at me or Mr Donaldson.  I am sorry.

HER HONOUR:   Not at all, Mr D’Arcy.  Yes.

MR D’ARCY:   The only potential reservation, your Honour is obviously every week counts.  It may be pushing my luck somewhat to suggest the only other date before the Canberra sittings is 31 January.  It is just that if we do run into difficulties mid‑February, it makes it potentially difficult to keep that first week of April date.

HER HONOUR:   I understand the concern.  An alternative would be Monday, 8 February.

MR D’ARCY:   Yes, your Honour, we would be content with that.

HER HONOUR:   Mr Donaldson, does that cause you problems?

MR DONALDSON:   No, your Honour.

HER HONOUR:   I think in light of the plaintiff’s concerns, we ought structure the timetable around a further directions hearing then on Monday, 8 February next.  Now, that would still leave matters, would it not, such that your proposal, Mr Donaldson, for the timetabling of the steps prior to the directions hearing could still be adhered to?  Is that right?

MR DONALDSON:   Yes, your Honour.

HER HONOUR:   Mr D’Arcy, is there any objection in that event?

MR D’ARCY:   No, your Honour.  As I say, the end date was the critical date.

HER HONOUR:   Yes.  Just one further matter, Mr D’Arcy, there is, I note, a removal application in proceedings S247/2015, Bell Group N.V. v The Insurance Commission of Western Australia.

MR D’ARCY:   That is correct.

HER HONOUR:   That raises discrete issues, does it?

MR D’ARCY:   It raises a discrete jurisdictional issue as to whether the Supreme Court has jurisdiction in that matter or whether the High Court has exclusive jurisdiction under section 38D of the Judiciary Act.  Our written submissions are due on 24 December.  They are well advanced and what I would be proposing in those submissions to say that that matter should be heard at the same time as this matter.

HER HONOUR:   In the event the matter were removed, would the two days be adequate?

MR D’ARCY:   Yes, it is a very short point.

HER HONOUR:   Yes.  Yes, very well.  Anything further you wish to put, Mr Donaldson?

MR DONALDSON:   Your Honour, I was just going to raise one issue about that timetable.

HER HONOUR:   Yes.

MR DONALDSON:   Not the timetable, your Honour, I am sorry, about the two days.  I have confidence that two days will be adequate, your Honour, but there is likely to be at least one other party we know seeking to ventilate the same issues as a plaintiff, as it were, and I am quite sure that there will be other interventions, your Honour ‑ ‑ ‑

HER HONOUR:   Yes.

MR DONALDSON:   ‑ ‑ ‑ but I would be hopeful that it could be dealt with in two days, your Honour, but it may be, depending upon other parties who intervene, that it would be prudent to bear the third day in mind?

HER HONOUR:   I take that on board without any guarantees.

MR DONALDSON:   Yes.  No, no, I am simply raising it with your Honour now ‑ ‑ ‑

HER HONOUR:   Yes.

MR DONALDSON:   ‑ ‑ ‑ but I would expect, your Honour, that really however many parties came to be involved, if the Court said that two days were allocated to it, then that would be the time in which it would be dealt with.

HER HONOUR:   Indeed.  Thank you, Mr Donaldson.

MR DONALDSON:   Your Honour.

HER HONOUR:   Very well.  I make the following orders:

1.The defendant is to file and serve a defence on or before 8 January 2016.

2.The plaintiff is to file and serve any reply on or before 22 January 2016.

3.The plaintiffs are to serve a draft case stated on the defendant on or before 22 January 2016.

4.The defendant is to serve any proposed changes to the draft case stated on or before 27 January 2016.

5.The matter is to be listed for further directions on Monday, 8 February 2016 at midday.

6.Liberty to apply to a Justice on three days’ written notice and the costs of today are costs in the cause.

MR DONALDSON:   I am terribly sorry, your Honour, the fourth order that your Honour made in relation to proposed changes to the draft case stated ‑ ‑ ‑

HER HONOUR:   Yes.

MR DONALDSON:   ‑ ‑ ‑ in our summons, that date was not 27 January, that was 5 February.

MR D’ARCY:   My apologies.  Sorry, your Honour.

HER HONOUR:   Not at all.

MR DONALDSON:   It may be better, in fact, your Honour, that I have taken your Honour’s time.  It might be better actually to make that 4 February anyway because that is a Friday, as against a Monday, and we would be content with 4 February, your Honour.

HER HONOUR:   Very well.  I will amend the fourth order to read, the defendant to serve any proposed changes to the draft case stated on or before 4 February 2016.

MR DONALDSON:   Thank you, your Honour.

MR D’ARCY:   Your Honour, just quickly, in relation to the case stated, we have served a draft case stated already.  It may obviously change slightly but we have obviously given as much notice as we could to the defendant and we also noted there that it may be appropriate after discussion with Mr Donaldson for it to proceed by way of special case.  That is something that might be sorted out down the track.

HER HONOUR:   Yes, well that is noted.  Thank you, Mr D’Arcy.  Very well, the Court will adjourn.

AT 12.12 PM THE MATTER WAS ADJOURNED