BT Aust v British Telecommunications & Ors, State of NSW v BT

[1998] HCATrans 255

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S91 of 1998

B e t w e e n -

BT AUSTRALASIA PTY LTD

First Applicant

BRITISH TELECOMMUNICATIONS PLC

Second Applicant

and

STATE OF NEW SOUTH WALES

Respondent

Office of the Registry
  Sydney  No S93 of 1998

B e t w e e n -

BT AUSTRALASIA PTY LTD

First Applicant

BRITISH TELECOMMUNICATIONS PLC

Second Applicant

and

TELSTRA CORPORATION LTD

Respondent

Office of the Registry
  Sydney  No S95 of 1998

B e t w e e n -

STATE OF NEW SOUTH WALES

Applicant

and

BT AUSTRALASIA PTY LTD

First Respondent

BRITISH TELECOMMUNICATIONS PLC

Second Respondent

Application for expedition

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 31 JULY 1998, AT 2.02 PM

Copyright in the High Court of Australia

MR G.C. LINDSAY, SC:   Your Honour, in each of those two matters, I appear on behalf of the applicants with MR L.S. EINSTEIN.  (instructed by Middletons Moore and Bevins)

I understand there will be another related application from the State of New South Wales in similar terms, and we have instructions to appear for the BT Companies in response to that application in time.

MR F.M. DOUGLAS, QC:   May it please the Court, I appear with my learned friends, MR W.G. MUDDLE and MR D.R. STACK for the State of New South Wales in each of the applications which are before the Court.  (instructed by I.V. Knight, Crown Solicitor Office, New South Wales)

MR J.T. GLEESON:   May it please the Court, I appear for Telstra Corporation, the respondent in one of those applications.  (instructed by
Blake Dawson Waldron)

HIS HONOUR:   I hope it has not caused any inconvenience that this matter has been brought on today but I thought it might be more appropriate to have it heard today in Sydney rather than on Monday or Tuesday in Canberra.

MR LINDSAY:   Your Honour can take it we are all genuinely grateful for the - - -

HIS HONOUR:   It is not inconvenient to you because you are the moving party.  My words were directed more to the other side.

MR LINDSAY:   I think I can speak on behalf of all, your Honour, because your Honour will see from the issues that we are all vitally interested and we have, in a sense, a similar interest.

HIS HONOUR:   Yes.  I have read the papers.  I have not absorbed all the arguments, of course, but the issue before me is not the merit of the application but simply whether it should be expedited.  You were offered a hearing date, as I understand it, in the Adelaide sittings or in the September sittings.

MR LINDSAY:   That is probably putting it too strongly, your Honour.  I do not want to bind the Court to that, but I was told that there was a date next week in Sydney; there was a date in Adelaide.

HIS HONOUR:   There is a date in Sydney next week but the Court already has 12 applications on that date and it would be to burden the Court to add another one and, therefore, if you want it heard next week you have to establish why.

MR LINDSAY:   I am happy to address your Honour but we would be seeking to obtain the first available date and if that happens to be in Adelaide, well, we accept what is involved in that.

HIS HONOUR:   Yes.  The note I have from the Registrar is that there are 12 applications listed on 7 August, which is next week.  However, there is a consideration that three of those matters are to be determined on written submissions.  That may save a little time in the Court in the hearing time and, therefore, it is possible, and if you have a strong argument for expedition, that I might be persuaded to list it next week, otherwise, on 14 August there is a motion day in Adelaide, special leave applications.  There are 12 applications in that list and one of those is to be dealt with on written submissions.  So, to some extent, the list next week may be more convenient from the Court’s point of view if you have a proper case for expedition.  What is that case?

MR LINDSAY:   The applications are brought against the background of some very substantial litigation going under way in the Full Court.

HIS HONOUR:   Yes, I know that.  What worries me is that you do not realise that this Court may not be able to deliver the kind of timetable that the Federal Court of Australia is able to deliver.  You had an application heard and determined before Justice Sackville on 1 April 1998, then there was a hearing in the Full Court on 18 June 1998 and a judgment on 24 July 1998, and you are before me today.  But I think your luck is running out in terms of the expedition because, even assuming that the matter were listed next Friday and that you were granted special leave, I think it is very difficult to anticipate that the Court would be able to hear the matter before the end of the year, let alone deliver judgment which is, I think, essentially what you are asking.

MR LINDSAY:   That is certainly what we would seek at best but we certainly would like to be able to have an opportunity to put matters before the Court in the fullness of time and the first step along the way is to get the first available date for the special leave application.  We would submit that there is some urgency about getting that application heard sooner rather than later, so that if it is at all possible - and we appreciate the limitations that the Court has - for the matter to be listed for next week, we would ask your Honour to do that.

HIS HONOUR:   It is not really a limitation.  It is simply the obligations that we have for a number of cases which are already listed.  I mean, the list until the end of the year is virtually full.

MR LINDSAY:   Your Honour, I do not wish to suggest otherwise.  I understand the position.

HIS HONOUR:   Perhaps I could ask Mr Douglas.  What would be more convenient to you, next Friday or the date in Adelaide, or are you opposing expedition altogether?

MR DOUGLAS:   Your Honour, which is the date in Adelaide?

HIS HONOUR:   It is 14 August.  So, it is the following Friday.

MR DOUGLAS:   Your Honour, I really cannot see, in the scheme of things, that either date really makes a difference.  What is important, obviously, to the parties is to have the matter determined if at all possible before the hearing which is scheduled to commence on 1 February next year for most of next year, as we understand it.

HIS HONOUR:   If the Court were to hear the application for special leave for expedition and then grant special leave, I suppose the sooner you and the Federal Court know that the better.

MR DOUGLAS:   Yes, that is our view.  There is an affidavit of Matthew Saxon White.  If I could just show to your Honour the original of that.  I do not think you have it.  I should perhaps formalise our position before the Court.  We have a summons for expedition which we have not been able to file this morning, together with an application for special leave, which are really the reverse face of the application by BT, and then there is an affidavit and exhibits of Bernadette June Grant of 31 July 1998, and what I want, in particular, to address the Court’s attention to is the affidavit of Matthew Saxon White, which is exhibit BJG4 to the affidavit of Ms Grant, which sets out the - - -

HIS HONOUR:   Just a moment.  I have received a summons which is filed in Court for expedition.  The applicant being the State of New South Wales; the respondents being the BT Australasia Pty Ltd and British Telecommunications PLC.  Now, is there going to be any appearance?  Will you appear in that interest?

MR LINDSAY:   I do.

HIS HONOUR:   You appear for the respondents.

MR LINDSAY:   I appear for both respondents, yes, your Honour.

HIS HONOUR:   And you support the application in that matter for expedition?

MR LINDSAY:   We do.

HIS HONOUR:   Yes, very well.  Now, you are referring me to an affidavit ‑ ‑ ‑

MR DOUGLAS:    Of Mr White, your Honour, which is exhibit BJG4 to the affidavit of Ms Grant.

HIS HONOUR:   Have you seen this affidavit, Mr Lindsay?

MR LINDSAY:   I have seen it on another occasion, your Honour, so I am content for it to proceed before your Honour.

HIS HONOUR:   Are you involved in this application, Mr Gleeson?

MR GLEESON:   We are not named as a party in that application, your Honour.

HIS HONOUR:   Very well.  What do you want to direct my attention to in this affidavit?

MR DOUGLAS:   Your Honour, particularly what is in paragraph 30 of it, of the consequences for the State of a vacated hearing date, and paragraph 29 which sets out the total costs incurred by the State to date, any ongoing costs of the litigation.  Regrettably, your Honour, it is a truly massive piece of litigation in which, in broad terms, BT alleges that the State breached a contract which it had with BT.  The State says, “No, that’s not so, that BT breached its contract”.  There is a very large monopolisation case between BT and Telstra, and it has proved to be a very expensive piece of litigation to all of the parties involved.  Each of the parties involved has a very large team of both legal and technical and support personnel full-time engaged in the preparation of these proceedings.

Now, the consequences to the parties of the matter not being able to proceed on 1 February next year would, indeed, be very severe so far as the overall costs of litigation are concerned.

HIS HONOUR:   Yes.  The applicant in the matter which was listed before me and the respondents in the application which you now make who support the expedition - the applicants have a right to seek special leave which they have exercised and it cannot be said, I suppose, that the issues that are raised are insignificant issues.

MR DOUGLAS:   No, they are - - -

HIS HONOUR:   As I understand it, unless special leave is granted then the claim to privilege will forever be lost.

MR DOUGLAS:   Yes, your Honour.

HIS HONOUR:   Therefore, though the proceedings are, in form, interlocutory, in effect, they are final on this point.

MR DOUGLAS:   Quite so, your Honour.

HIS HONOUR:   And to that extent it is desirable, I would have thought, for all parties, that they know as soon as possible whether they are going to be able to venture this issue or whether it is lost and, therefore, that the litigation has to proceed on the footing in which it has been left by the order of the Full Court.

MR DOUGLAS:   Yes, your Honour.

HIS HONOUR:   So, that seems to argue for an high element of expedition.

MR DOUGLAS:   It does, your Honour.

HIS HONOUR:   And the highest element of expedition is next Friday.

MR DOUGLAS:   It is, your Honour.  And if the Court can do that without greatly inconveniencing the Court - - -

HIS HONOUR:   It is a great inconvenience to the Court but that is a small concern to the parties and their lawyers, I am sure.  What is your attitude, Mr Gleeson?

MR GLEESON:   We support the application for expedition and if the matter can be heard next Friday, we support that course as well.

HIS HONOUR:   There was mention of another proceeding.  Is there another proceeding that is yet to come or have I now before me all the proceedings?

MR LINDSAY:   Your Honour has them.  In the principal proceedings there is but one set of proceedings.  However, in the Full Court there were three appeals.  Two of them were heard together and they are known in the papers as “the Issue Waiver appeals”.  Following upon those appeals, there was another appeal that was dealt with.  That is the Lopert appeal.  BT are seeking special leave to appeal against the two that were running together and the government is seeking leave in relation to the Lopert appeal, so that your Honour should have before your Honour three summonses and three applications for special leave.

HIS HONOUR:   I think I only have two unless I have not seen them all.

MR LINDSAY:   And the explanation for that, as I understand it, is that, on our side, we have been able to file our documents and they have been given the High Court Nos S91 and S93.

HIS HONOUR:   Yes, they are the two that I have.

MR LINDSAY:   Yes, and the government have not yet been able to file theirs in the Registry but they have provided them to us and to your Honour now.

HIS HONOUR:   Handed up with the application which was handed to me by counsel for the State of New South Wales was an application for special leave to appeal.  This is the third process, is it, Mr Douglas?

MR DOUGLAS:   Yes, it is the third, your Honour.

HIS HONOUR:   And it concerns the same judgment of the Full Court?

MR DOUGLAS:   Two judgments, your Honour.  Essentially, we were successful in one; unsuccessful in the other.  So, we say if theirs is to come up, ours should come up too because the same point of law is involved.

HIS HONOUR:   Are there two sets of reasons?

MR DOUGLAS:   Yes, there are, your Honour.

HIS HONOUR:   That is to say, the reasons of the majority and minority in both proceedings, or not?

MR DOUGLAS:   Yes, they are in two sets of reasons, your Honour.  There are two separate judgments.

HIS HONOUR:   Now, the only one I have seen are the reasons relevant to Nos 91 and 93 of 1998.  I have not seen the reasons in the matter which you are seeking to file by the application you handed up with the summons for expedition.

MR DOUGLAS:   It is exhibit 2, your Honour, to - - -

HIS HONOUR:   That is in the bundle of papers that you handed me.

MR DOUGLAS:   Yes, it is in the affidavit of Bernadette Grant, your Honour.

HIS HONOUR:   It is connected to the affidavit of Bernadette Grant, is that correct?

MR DOUGLAS:   If your Honour goes to the third page of Justice Branson’s judgment - - -

HIS HONOUR:   I see.  These are short reasons which, in effect, say, do they, that for the reasons given in the other matter the consequences flow, is that correct?

MR DOUGLAS:   Yes, your Honour.  That being the case, if you read under the heading “Consideration”:

It is my view the result of this appeal is dictated by the result of related appeals.

And Justice Lehane - - -

HIS HONOUR:   So it would not be a great extra burden for the Court to have the other proceedings that you are now seeking to file.

MR DOUGLAS:   No, your Honour.  I can give your Honour that assurance.  It is the same.

HIS HONOUR:   The issues are essentially the same, are they?

MR DOUGLAS:   Yes, your Honour.

HIS HONOUR:   You agree with that, Mr Lindsay?

MR LINDSAY:   I do.

HIS HONOUR:   Do you agree with that?  Are you concerned in that matter, Mr Gleeson?

MR GLEESON:   Not entirely, your Honour.  The issue is in part the same and there is a slight difference, but we should not take up much time with that this afternoon.  We do not agree the issues are identical as illustrated by the fact that in the BT appeals they lost 2:1 and in this matter it was a 3:0 decision.  So there are some differences.  In this case, there is a question of disclosure of privileged material whereas in the BT appeal it is a different issue; it is pure issue waiver, as it is called.

HIS HONOUR:   I do not quite fully understand that because I have not had the opportunity before now of reading the judgments of the Full Court, but it does seem sensible, if one is expediting 91 and 93 of 1998, to expedite this matter as well, because they are certainly related.

MR GLEESON:   We agree with that, yes, your Honour.

HIS HONOUR:   I think it is best if I return the application for special leave that you are seeking to file so that that can be filed in the normal way in the Registry.

MR DOUGLAS:   May it please the Court.

HIS HONOUR:  

Otherwise the fees might not be paid, and I would not want the Commonwealth to ‑ ‑ ‑

MR DOUGLAS:   No, we must be scrupulous about that, your Honour.

HIS HONOUR:   I grant leave to you to file the summons for expedition which has been now heard. 

I will order that the proceedings in matter No S91 of 1998 and matter No S93 of 1998, and in the additional proceedings between State of New South Wales v BT Australasia Pty Ltd and British Telecommunications Plc, when filed, be expedited, and that all such applications for special leave be heard before the Court on Friday, 7 August 1998.

It will be necessary to vary the requirements of the Rules under Order 69A and to set a time table for the filing of the respondents’ summaries of argument and the applicants’ reply in matters No S91 of 1998 and No S93 of 1998 and to fix a time table for the filing of arguments in the matter yet to be filed.  What do you suggest in relation to the arguments of the respondent in matters No S91 and S93 of 1998?

MR DOUGLAS:   Is Wednesday seen appropriate?

HIS HONOUR:   Is that appropriate?

MR LINDSAY:   I can live with that.

HIS HONOUR:   That would only allow you Thursday within which to file the reply.

MR LINDSAY:   I would prefer Tuesday, but if I am told Wednesday is the best they can do, I will not struggle ‑ ‑ ‑

HIS HONOUR:   I do not think it is unreasonable, given the detail of your application for special leave, even allowing that it is expected that counsel will work all weekend.

MR LINDSAY:   They used to, your Honour.

HIS HONOUR:   The respondents in S91 and S93 of 1998 will have until Wednesday, 5 August 1998 at noon to file and serve the respondents’ summary of argument.  The applicant will, in each matter, file the reply by Thursday, 6 August 1998 at 4 pm.  You should make sure, please, Mr Lindsay, that a copy of it goes to the associates to the Justices who are assigned to sit.

MR LINDSAY:   Certainly.

HIS HONOUR:   Now, as to the application yet to be filed, what is the proposal there?

MR DOUGLAS:   Your Honour, we can do that by 4 pm on Monday.

HIS HONOUR:   Is that appropriate?  Is that convenient?

MR DOUGLAS:   It is unlikely to be more than simply an adoption of the arguments which have been advanced by the applicants in the other matter.  I have to consider this question of disclosure.  I have not had a chance of doing that myself, not being involved in the earlier appeals.

HIS HONOUR:   Who is the respondent party to that application?

MR LINDSAY:   I am, your Honour.  In the circumstances, I am content with 4 pm on Monday for Mr Douglas.

HIS HONOUR:   Very well.  In the related application for special leave yet to be filed, the applicant’s summary of argument is to be filed by 4 pm on Monday, 3 August 1998.  The respondents’ summary of argument by Wednesday at noon?

MR LINDSAY:   Can I have till 4 pm?  If I can meet it earlier, I will.

HIS HONOUR:   Yes.  And the applicant’s reply by Thursday, 6 August 1998 at 4 pm. 

The costs of the proceedings for expedition will be costs in the applications for special leave.

I certify for counsel appearing in Chambers.

Is there any other order that you seek, Mr Lindsay?

MR LINDSAY:   No, your Honour.

HIS HONOUR:   Anything else you ask for, Mr Douglas?

MR DOUGLAS:   No, your Honour.

HIS HONOUR:   Mr Gleeson, you have been very quiet during all this.  Is there anything else you want?

MR GLEESON:   No, your Honour.

HIS HONOUR:   Very well.  They are the orders of the Court.  The Court will now adjourn until 11 am in Canberra on Monday next.

AT 2.22 PM THE MATTER WAS CONCLUDED