Child v Commonwealth Development Bank of Australia Ltd

[2000] HCATrans 581

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S255 of 2000

B e t w e e n -

JAMES DAVID CHILD

Applicant

and

COMMONWEALTH DEVELOPMENT BANK OF AUSTRALIA LIMITED

Respondent

Application for expedition

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 18 DECEMBER 2000, AT 9.34 AM

Copyright in the High Court of Australia

MR C.W.J. LEGGAT:   May it please your Honour, I appear for the applicant.  (instructed by Webster O'Halloran & Associates)

MR J.H. BARTROP:   May it please the Court, I appear for the respondent.  (instructed by Abbott Tout)

MR LEGGAT:   Your Honour, by motion filed 8 December, Mr Child seeks that his application for special leave to appeal be expedited.  The affidavit in support, which I read, is that sworn by my instructing solicitor, Mr Stephen Roy Webster, sworn 8 December this year.

HIS HONOUR:   Yes.  Now, I take it from the draft grounds and looking at the judgment of the Court of Appeal, you take issue, do you, with what is said in the judgment in the Court of Appeal ‑ is it paragraph 27?  Is that one of the crucial paragraphs?

MR LEGGAT:   Yes, your Honour.

HIS HONOUR:   And paragraph 25?

MR LEGGAT:   Yes.

HIS HONOUR:   Now, is the application for expedition opposed?

MR BARTROP:   No.

HIS HONOUR:   Yes, all right.  I will make order 1 in the summons filed on 8 December.  The application, as matters now stand, would go into the list in Sydney on Tuesday, 10 April 2001, commencing at 2.00 pm.

MR LEGGAT:   Your Honour, there is one further matter in light of that date.

HIS HONOUR:   Yes.

MR LEGGAT:   Your Honour, the Court of Appeal on Friday granted a stay up to and including 16 February of next year.

HIS HONOUR:   Have you that order there?

MR LEGGAT:   Yes, I have.

HIS HONOUR:   Have you a copy of it?

MR LEGGAT:   A copy of Justice Priestley's judgment.

HIS HONOUR:   I think in the circumstances ‑ I am just looking at the orders Justice Priestley made at paragraph 14.  I think, Mr Bartrop, I should extend the stay in orders 1, 2 and 3 up to and including 10 April 2001.

MR BARTROP:   Before you do so, your Honour, could I just say that, in my submission, Justice Priestley applied the incorrect test and that he came to the conclusion at paragraph 9 that the application could not be described as vexatious.

HIS HONOUR:   Yes.  Well, I have had a look at it now.

MR BARTROP:   I would suggest that it has to have substantial prospects of success and, in the events that have happened, I would be submitting that a stay should not be extended, but I am in your Honour’s hands.

HIS HONOUR:   Yes.  I hear what you say, nevertheless, having looked at the judgment of the Court of Appeal, I think there is sufficient in it to preserve the status quo.  Justice Priestley was under the view conveyed to him that the Court would not be dealing with it for some time in the future, but that has not turned out to be so.

I should extend the stay in orders 1, 2 and 3 of the orders of the Court of Appeal of 15 December 2000 up to and including Tuesday, 10 April 2001.  There should be liberty to apply to a Justice of this Court on seven days notice.  The costs of the expedition and stay application will be costs of the special leave application.  I certify for counsel.

MR LEGGAT:   May it please your Honour.

AT 9.41 AM THE MATTER WAS CONCLUDED