CMT Construction of Metropolitan Tunnels v National Employers' Mutual General Insurance Association Limited

[1988] HCATrans 244

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M70 of 1988

B e t w e e n -

CMT CONSTRUCTION OF METROPOLITAN

TUNNELS

Applicant

and

NATIONAL EMPLOYERS' MUTUAL

GENERAL INSURANCE ASSOCIATION

LIMITED

Respondent

Application for special leave to

appeal

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 OCTOBER 1988, AT 9.02 AM

Copyright in the High Court of Australia

MITl/1/SDL 1 14/10/88

MR B.D. BONGIORNO, QC: If the Court pleases, I appear with

my learned friend, MR R.G. WILLIAMS, for the

applicant. (instructed by Alfred L. Abrahams

& Co)

MR J.E. BARNARD, OC: If the Court pleases, I appear with

my learned friend, MR J.A. RIORDAN, for the
respondent, National Employers' Mutual General

Insurance Association. (instructed by Coltmans)

MR D.R. CROSS:  Your Honour, I seek leave to appear on

behalf of the· appellant, Transport Accident

Commission. (instructed by Pullin & Co)

I understand certain final matters are being

discussed with - - -

HER HONOUR:  Yes, I have been shown a document relating

to final matters but I am not too sure that

they are listed before me.

MR CROSS:	I would seek leave
HER HONOUR:	Yes, there is no objection to that course?
MR BONGIORNO:	No, Your Honour.

HER HONOUR:  Leave is granted. Yes, Mr Bongiorno.

MR BONGIORNO: If the Court pleases, this is an application

by CMT for special leave to appeal out of time

seeking an order nunc pro tune, as it were,
following a judgment of the Full Court of this
Court in which observations were made by the

Court as to the appropriate course to follow

to have the whole question of CMT, NEM and TAC's

interdependent liabilities determined.

Your Honour will recall the Full Court

hearing in Canberra, of which Your Honour was

a member, finding that TAC was not liable beyond

the extent of the judgment in the original jury

action which meant that CMT had no liability
to NEM.	But the Court, also observing that

as CMT had not made an application for leave

to appeal and that no notice of appeal had been

delivered, declined to make any orders in respect

of NEM's position vis-a-vis CMT.

This application is brought to regularize

the position by seeking leave to appeal on behalf

of CMT and then, with the ultimate aim of proffering
to the Court now minutes of proposed orders

so far as both appeals are concerned - not,

of course, that that is a matter that Your Honour

can deal with but can be dealt with ultimately

by a Full Court.

MITl/2/SDL 2 14/10/88

The material upon which GMT relies is

contained in the affidavit of Duncan Austin Symons

which Your Honour will have seen.

HER HONOUR:	Yes, I have read that affidavit, Mr Bongiorno.
MR BONGIDRNO:	It stems from the last paragraph on page 14

of the Court's judgment in the other appeal,

as it were. Accordingly, we seek, first of

all, an order that such abridgement of time

under Order 60 rule 6 of the High Court Rules

as is necessary to enable the applciation to

be brought and then an order nunc pro tune for

special leave with a view to then profi~ing

the minutes of consent orders to the Full Court

to allow the appeal.

HER HONOUR:	Yes, thank you.
MR BONGIORNO:	I do not think there is anything further

that I can put before Your Honour that will

be of assistance.

HER HONOUR:  Yes. Thank you.

MR BARNARD:	The application is not opposed, Your Honour.
HER HONOUR:	Thank you.
MR CROSS:	I do not oppose the application.

HER HONOUR:  Yes. In that case, an order will be made

granting leave to bring an application for special

leave out of time. An order will be further

made that special leave be granted in accordance

with the application, such leave being granted

nunc pro tune.

I think there is only then the question

of costs?

MR BONGIORNO:  There is then only the question of costs

and the final orders, Your Honour. In respect

of this application we would seek an order that

costs be reserved. That has been then dealt

with in the minutes of proposed orders which

have been made.

HER HONOUR:  That would mean that, in effect, you would

get your costs of this application.

MR BONGIORNO: Ultimately, Your Honour, yes.

HER HONOUR: Ulitmately. Is that consented to?

MR BONGIORNO: It is not, as I understand it.

MITl/3/SDL 3 14/10/88

MR BARNARD:  We are only here because of the failure to

give the notice before the hearing in Canberra

and it seems a fairly minor matter and one would

have thought the costs could be borne by the

parties.

HER HO-NeuR:	What does that mean?
MR BARNARD:	We would suggest there should be no order

as to costs.

HER HONOUR: Yes, thank you. This concerns you, too, of

course, does it not, ultimately?

MR CROSS:  Yes, Your Honour. I would be seeking an order

that the costs be reserved so far as my costs

are concerned.

HER HONOUR: Well, of course, you are here only as an intervener.

MR CROSS:	Yes.
HER HONOUR:	You want your costs reserved of this application?

MR CROSS:  Yes, that is right. Or my costs of this

application ..... to be reserved.

HER HONOUR: You-:'.are..a.11 at loggerheads, I th ink, then.

Mr Bongiorno ultimately wants his costs from

you - - -

MR BONGIORNO:	No, from NEM.
HER HONOUR:	I see, but NEM opposes it?

MR BARNARD: If I may say so, so far as Mr Cross is concerned,

there is no application here that concerns him.

The application that concerns him is the sorting

out of the orders pursuant to the judgment at

a later stage. He is not in a position either

to support or oppose the appeal of Mr Bongiorno.

MR CROSS:	As to that I must say that my learned friend,
Mr Bongiorno, requested me to be here and I
understood on making inquiries that something
might arise on the question of costs and it
was inadvisable for me not to be present.
MR BONGIORNO:	Your Honour, so far as CMT is concerned,

following the application for special leave

that was made by the Transport Accident Commission -

indeed, before that application CMT always took

the view that it was entitled to indemnity from

one side or another; that it is an insurer

who buys two insurance policies in respect of

risks and - - -

MITl/4/SDL 4 14/10/88

HER HONOUR:  Yes, I understand that, but the point is we are

here today because you did not file any application

for special leave at an earlier time.

MR BONGIORNO:  Although, Your Honour, we made an oral

application to the Court on that application

for special leave which is adverted to in the

judgment and certainly it was the view taken

by us that the granting of special leave incorporated -

although His Honour the Chief Justice did not

say anything 3bout the application that was made

to enable us to continue our opposition to NEM's
claim, it was certainly taken by all parties
on the hearing in Canberra that that was the

way in which the case was to be conducted and

it was only upon reading the Court's judgment

that it became apparent that the Court took

the view that there should have been or could

have been an application for special leave.

HER HONOUR:  I think it was "should have been".

MR BONGIORNO:  Should have been. Your Honour, we were,

of course, up to the point at which the Transport

Accident Commission got special leave, we were totally disinterested or uninterested in the outcome of the proceedings. It was only after it got special leave that then we were at

theoretical risk, at least, so far as NEM were

concerned and, accordingly, it is our submission

that there would have had to have been an application

for special leave by us either now or earlier

and it is our application that Your Honour should

simply reserve the costs and have them dealt
with in the way in which it has been agreed

so far as the whole appeal is concerned.

HER HONOUR:  Yes. Do you wish to say anything further,

Mr Barnard?

MR BARNARD:  What we say as to that is that there was an

order of the Full Court standing, following

the Full Court's decision, that CMT Constructions

should pay a sum of money and immediately the

State Insurance Office, or TAC, gave its notice

of application to appeal - or sought special leave to appeal - the issue arose as to

whether that order should stand.

HER HONOUR:  Of course it did,but that was not a matter

that apparently appeared with any clarity to any of the parties. The matter was adverted

to on the last special leave application in
terms of the position of CMT without any issue

being made as to the formal requirements to

bring it before the Court.

MITl/5/SDL 5 14/10/88

MR BARNARD:  I agree with that but, with respect, the

formal requirements had to be complied with;

CMT should have got special leave to appeal

and done it at the time when the Transport Accident

Commission did it and we would not be here today.

HER HONOUR:  Yes, thank you. Having heard the parties

on the question of the costs of the special

leave application, the order I would make is

there be no order as to costs of

or as between CMT and NEM but the costs

of Transport Accident Commission be reserved.

MR BONGIORNO: If the Court pleases.

HER HONOUR:	There is nothing further that needs to be done on this?
MR BONGIORNO:	Your Honour, as Your Honour has observed,

we prepared minutes of proposed orders so far

as the disposition of the whole appeal is concerned

and no doubt the Registrar can tell us how that
can be put before the Full Court to enable those

orders to be made.

HER HONOUR:  Yes. The Court will now adjourn until

10 o'clock.

AT 9. 13 AM THE MATTER WAS ADJOURNED SINE DIE

MITl/6/SDL 6 14/10/88