Bryan v Moloney

[1994] HCATrans 74

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
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O/N 4281  21.10.94

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
         Melbourne     No H10 of 1993

In the matter of -

BRYAN

and

MOLONEY

DAWSON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 20 OCTOBER 1994, AT 9.37 AM

Copyright in the High Court of Australia

HIS HONOUR:   Yes, Mr Kable.

MR H.J. KABLE QC:  May it please your Honour, I appear for the applicant who is the respondent to the appeal.

HIS HONOUR:   That is Mrs Moloney.

MR KABLE:   Mrs Moloney, yes.

HIS HONOUR:   Yes.

MR G.J. AHEARN:   Your Honour, I do not have instructions to appear on behalf of the appellant.  In fact Sly and Weigall has ceased to act for the appellant.

HIS HONOUR:   Not so far as the court is concerned.

MR AHEARN:   Not as far as the court is concerned, your Honour, which is why I am here today.  I was served with the papers in relation to this application last Wednesday and Sly and Weigall still remain as solicitors on the record.  However, we have ceased to act and we have filed a summons seeking a declaration from the court to the effect which is returnable in about two weeks time.

HIS HONOUR:   You really cannot take much part in these proceedings, if that is - - -

MR AHEARN:   Yes, your Honour, that is right.  Subject to your Honour's views, I cannot be of any further assistance to the court in relation to this application, in my view.

HIS HONOUR:   Very well, thank you, Mr Ahearn.  Mr Kable.

MR KABLE:   May it please your Honour.  This is an application pursuant to order 72 of the High Court rules which order provides that in cases not provided for, a justice may give directions as to the manner and form of procedure where there is no procedure prescribed.  If I can take your Honour to the application and to the affidavit of Shaun McElwaine, the application seeks alternate directions and/or orders, and filed in support of that application is an affidavit of Shaun McElwaine - - -

HIS HONOUR:   Well I have read the papers, Mr Kable, and I think I appreciate the problem.  The Housing Industry Association, of course, has not been served with anything.

MR KABLE:   That is correct, your Honour.

HIS HONOUR:   So that it would seem, if I may say so, and I invite your comment, it would be desirable for them to be joined if an order for costs is to be made against them.

MR KABLE:   Certainly I would not demur from that observation.

HIS HONOUR:   Knight's case did not seem to think that this was absolutely necessary, but obviously if there is going to be argument it is desirable that they are there as a party.

MR KABLE:   Yes.  I absolutely agree, your Honour.  The real question for your Honour is whether or not an order as such as that sought in paragraph 1 ought to be made before taking the additional step of joining the Housing Industry Association because it would seem to us, and we would so submit, that if the undertaking is an undertaking to pay the costs, as distinct from merely to consent to an order for costs, then the taking of the step of joining the Housing Industry Association may well become unnecessary because if it is an undertaking to pay and if that undertaking is shown either to have or have not been given on behalf of the party Bryan, then the remedies available to Mrs Moloney would be in respect of the failure to honour the undertaking and it would - - -

HIS HONOUR:   But if the undertaking was given on behalf of Mr Bryan, does that help you very much?

MR KABLE:   It may well help.  I cannot know the answer to that - - -

HIS HONOUR:   It is desirable anyway that the Housing Industry Association be there and the best way to get them there is to join them, is not it?

MR KABLE:   I am not suggesting to the contrary, your Honour.  It is desirable that they be there.

HIS HONOUR:   So if I direct that you, by summons, make application to join the Housing Industry Association, that is the first step, is it not?

MR KABLE:   If your Honour pleases.  I was intending to seek to persuade your Honour to go the other way, but certainly that is one of the directions that we would have liked.

HIS HONOUR:   Go the other way in what sense?

MR KABLE:   In terms of, have the nature and content of the undertaking identified because that might - for the reason I just mentioned.  That might render it otiose.

HIS HONOUR:   But that is not something I could do as a single judge.

MR KABLE:   No, absolutely, your Honour. 

HIS HONOUR:   What I would contemplate is, after the Housing Industry Association is joined a direction that by motion on notice returnable upon the date for delivery of judgment you seek an order for costs in one form or another, but that is a matter for you, or if you want to base it on the undertaking you will have to devise a form of application.

MR KABLE:   Yes.

HIS HONOUR:   But make application to the court which delivers judgment.

MR KABLE:   Your Honour, that is the very sort of order I was seeking to obtain, because it seemed to me that one could not have a notice of motion returnable to an uncertain date absent a direction from a justice.

HIS HONOUR:   Yes, well it will require some liaison with the Registrar's office to ensure that you are informed of the date beforehand, and probably to ensure that the bench that delivers judgment is the appropriate one to hear - - -

MR KABLE:   Well, that - - -

HIS HONOUR:   Or it may well be, I do not know and it would not be of great significance to you, I suppose, the notice of motion may be set down for hearing at some subsequent date when full argument can be heard.

MR KABLE:   None of those issues would cause us any concern.  We just do not want to be too late, if I can put it that way, and that is why we have taken this step now, and that is why I have concurred in the observation of your Honour that the Housing Industry may well necessarily need to be made a party.  I was going to seek a direction from your Honour that the form, content and effect of the undertaking be determined by the court which heard the appeal.  I was going to seek such a direction as well, in order to ensure that that - that was the only - the extent of the order inter parte, as I was going to seek as to that, your Honour.  That is that that issue then be formalised and pursuant to a direction of your Honour be determined by the court which heard the appeal, which would then mean that subject to us taking the two other steps that your Honour has just indicated, we would then have a situation where both the undertaking and - sorry, the content of the undertaking and the situation vis a vis the Housing Industry Association would all be properly before that court and subject to arrangements with the Registrar be agitated at a time, appropriate or not, as the case may be.

So that - when I mentioned order 1 I was not seeking, your Honour, to make any substantive order of any dispositive order of the matter, but I was seeking a direction from your Honour that the form - a direction that the form content and effect of the undertaking given on 9 December 1993 be determined by the court which heard the appeal.  That was a direction that I was seeking.

HIS HONOUR:   Yes.  I think it probably should be left at large in the sense that you should formulate what it is what relief you want on the return of the motion on notice.  I mean it can be in the alternative, that you want an order for costs or that you want an order enforcing the undertaking, and that notice of motion would be supported by an affidavit setting out the circumstances.  But that is the next step.

MR KABLE:   Yes.  Then to the extent necessary, can I have a direction from your Honour that we can take out a notice of motion returnable with that varying date, upon the date upon which judgment is given, because we cannot, of course, know what that is, and ordinarily one could not take out a notice of motion, or the court would not issue a notice of motion - - -

HIS HONOUR:   I cannot give that direction really until the Housing Industry Association is a party, and one would have to perhaps hear them on that question.  But I can direct that - first of all I can direct that the applicant, that is your client, apply by summons returnable before a single judge to join the Housing Industry as a party to the proceedings.

MR KABLE:   Yes.

HIS HONOUR:   And then on the return of that summons - well we can do it this way:  direct that the applicant apply by summons returnable before a single judge (1) to join the Housing Industry as a party to the proceedings;  (2) for a further direction that the applicant apply by notice, by motion upon notice, returnable upon the date of delivery of judgment in this matter, for an order for costs against the Housing Industry Association or for such other order in relation to the undertaking given by the - - -

MR KABLE:   Counsel for the appellant, or the appellant.

HIS HONOUR:   The appellant.  Instead of calling you the applicant we had better call you the - well we can leave that.  Counsel, given on behalf of the appellant, upon the application for special leave to appeal.  Now that would cover it. 

MR KABLE:   Yes.

HIS HONOUR:   But you will need to get that direction at the stage when they are joined.  We have to take it step by step.  So the direction which I am contemplating giving is:

(1) I direct that the applicant apply by summons returnable before a single judge (a) to join the Housing Industry Association as a party to the proceedings;
(2) To seek a further direction that the applicant apply by motion upon notice returnable on the date of delivery of judgment in this matter for an order for costs against the Housing Industry Association, or such other order as it may seek in relation to the undertaking given on behalf of the appellant upon the application for special leave to appeal.

That should cover it, should not it?

MR KABLE:   That - yes, your Honour.  That gets me to the stage where I can take the next - or those instructing me can take the next step.

HIS HONOUR:   And I reserve costs and certify.

MR KABLE:   I am obliged.  They were the orders I was going to seek your Honour to make.

HIS HONOUR:   Very well.  I will give those directions.

MR KABLE:   I am obliged.  If it please the court.

AT 9.50 AM THE MATTER WAS ADJOURNED
INDEFINITELY