CSR Ltd v Cigna Insce Aus Ltd

[1997] HCATrans 231

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S120 of 1996

B e t w e e n -

CSR LIMITED

Appellant

and

CIGNA INSURANCE AUSTRALIA LIMITED and those entities set out in Schedule A hereto

First Respondents

THE GENERAL INSURANCE COMPANY OF TRIESTE AND VENICE and those entities set out in Schedule B hereto

Second Respondents

CSR AMERICA, INC

Third Respondent

Office of the Registry
  Sydney  No S124 of 1996

CSR AMERICA, INC

Appellant

and

CIGNA INSURANCE AUSTRALIA LIMITED and those entities set out in Schedule A hereto

First Respondents

THE GENERAL INSURANCE COMPANY OF TRIESTE AND VENICE and those entities set out in Schedule B hereto

Second Respondents

CSR LIMITED

Third Respondent

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 20 AUGUST 1997, AT 9.16 AM

Copyright in the High Court of Australia

MR J.T. GLEESON:   May it please the Court, I appear with DR A.S. BELL, for the applicants on the motion.  (instructed by Phillips Fox)

MR J.C. KELLY, SC:   MR D.F. JACKSON, QC appears for CSR Ltd and I with him, may it please your Honour.  (instructed by Freehill Hollingdale Page)  (Mr Jackson did not appear in Court)

MR D.M.J. BENNETT, QC:   If the Court please, I appear for CSR America Inc.  (instructed by Allen Allen & Hemsley)

HIS HONOUR:   This application is one which obviously ought to be heard before as many of the Justices as are available who constituted the Court in which the decision was handed down.  Needless to say, that raises some particular problems.  What is the course which you would expect the argument to take, Mr Gleeson.

MR GLEESON:   Your Honour, that written submissions would be filed in advance of the hearing; have a timetable for that.  It is just a matter of inserting the dates once the Court allocates a date for the hearing itself, and the course of the application itself would be half a day, if the Court were willing to give it that period of time.

HIS HONOUR:   Yes.  You have a draft order there, have you?

MR GLEESON:   Yes, I have the orders.

HIS HONOUR:   Have they been ‑ ‑ ‑

MR GLEESON:   They have been circulated.  It is just a matter that we will put in convenient dates, working back, perhaps, from the date the Court allocates.

HIS HONOUR:   Mr Kelly, that draft order is satisfactory to you?

MR KELLY:   Yes, your Honour.  We would expect, however, that the application should take far less time than my learned friend suggests, although, of course, we are in his hands.

HIS HONOUR:   Mr Bennett.

MR BENNETT:   We agree with that.  We would seek the earliest possible date and we were going to ask your Honour to put it in the Adelaide sittings.  May I just say this about length, your Honour:  the application - and may I just spend three minutes showing your Honour how short the matter will be?

HIS HONOUR:   Yes.

MR BENNETT:   If your Honour goes to the notice of motion your Honour will see that the order is sought on the basis that:

the First and Second Respondents were afforded no opportunity of being heard on the following questions:

(a)whether the High Court should make a finding of fact that the dominant and/or central purpose -

et cetera.  The finding in fact appears at page 53 of the majority judgment.  It does not use the word “dominant”, it uses the word “central”.

HIS HONOUR:   It uses “dominant” in the following paragraph.

MR BENNETT:   In referring to the general rule, yes.  But perhaps there is not a great deal of difference but, in any event -  if your Honour goes to annexure to the appellant’s written submissions, which is the third exhibit to the affidavit, exhibit TRP1(c) ‑ ‑ ‑

HIS HONOUR:   Appellant’s written submissions, is that right?

MR BENNETT:   Yes, your Honour, and your Honour goes to page 15, your Honour will see almost the precise submission is made in paragraph D, four lines down.

MR BENNETT:   Yes.

MR BENNETT:   Mr Jackson referred to that.  If your Honour now goes to ‑ ‑ ‑

HIS HONOUR:   You do not need to battle the argument out here, Mr Bennett ‑ ‑ ‑

MR BENNETT:   I am not battling, your Honour.  What I am showing your Honour is that this is almost vexatious.  The precise submission which it is complained that they did not have an opportunity to meet was made in written submissions and made in argument, and it is in one paragraph in the argument where the same submission is made.  So, with all respect to my learned friend Mr Stitt’s eloquence, your Honour, this cannot take half a

day.  We would have thought half an hour would deal with it, maybe a little longer if people want to put lengthy arguments, but it is just a matter of showing the Court “You are wrong, because here it is.” and that is the end of the motion.

HIS HONOUR:   Yes.

MR BENNETT:   So we would submit, your Honour, it is really a very short matter.  It is of great urgency from our point of view because it is holding up the proceedings in the United States - or it may hold them up.  We would ask your Honour to set it down during the Adelaide sittings from 1 to 5 September at a convenient time during those sittings and perhaps allow an hour or two for it.

HIS HONOUR:   I am not sure whether that is practicable.  What do you say about the occasion for the listing of it, Mr Kelly?

MR KELLY:   We would accede to my learned friend’s suggestion.  We would be happy to take the earliest possible date.

HIS HONOUR:   Yes.  Mr Gleeson.

MR GLEESON:   Your Honour, I maintain the estimate of half a day.  I will not go into the argument but it covers far more than what Mr Bennett has outlined.  We had understood from contacting the Registry that we were looking at dates from 22 September onwards.  Mr Gyles of senior counsel will be conducting the application and I have his available dates, if that could fit in with the Court.  I would be asking your Honour to put it in September or November

HIS HONOUR:   I am afraid the question of available dates simply will not figure in this calculation but the dates which, apart from the Adelaide sittings, the date which, on receipt of the motion I though may be a possibity is Tuesday, 30 September.  So the choice will be between that date and the Adelaide sittings.  I will have a look at the Adelaide sittings and see what the possibilities are.  Do you have anything to say about the Adelaide sittings, Mr Gleeson?

MR GLEESON:   Nothing other than the availability of counsel.  Your Honour should not act on a basis put by Mr Bennett that this application is holding up New Jersey.  If Mr Bennett is to put forward that application, he should in fact tell your Honour what his clients’ obtained from the New Jersey court about half an hour after this Court’s judgment

being handed down, namely an anti-suit injunction and an anti-anti-suit injunction addressed to the insurers in these proceedings.

HIS HONOUR:   Yes.  It may be possible to list it in the Adelaide sittings.  There is one problem that it would raise that I am not in a position to deal with at the moment.  I think the course that I will take will be to have a look at your draft order, Mr Gleeson, and then I will make inquiries and let the parties know through the Registry as to the date on which the matter will be listed for hearing.

MR GLEESON:   Could I indicate, your Honour, that it is our strong preference, if those two dates are available, to have 30 September; that Mr Gyles does estimate the matter will take half a day and that, given that period of time, if there is no difference in the inconvenience to the Court, as between the parties 30 days does not make a real difference and for our part it means that the senior counsel who has carefully considered and advised on the application would be unavailable, so it does make a real difference. 

HIS HONOUR:   Yes.

MR GLEESON:   I hand to your Honour the draft short minutes.

HIS HONOUR:   Thank you.  Obviously the dates which are to be filled in in relation to the filing and serving of written submissions are dependent upon the date on which the matter is listed, is that so?

MR GLEESON:   Yes, it is.

HIS HONOUR:   When would you be ready to file and serve your written submissions, Mr Gleeson?

MR GLEESON:   Seven days, your Honour.

HIS HONOUR:   How long do you require, Mr Bennett?

MR BENNETT:   Your Honour, so long as we have a weekend, if we could put ours on by Monday, 1 September.  I assume if it was listed in Adelaide it would not be on that day.

HIS HONOUR:   No, it would not be on that day.  The likely day, if any, would be Thursday, 4 September, or possibly Wednesday, the 3rd. 

I think I will just have to adjourn this generally.  I will make an order in terms of the draft, filling in the appropriate days.  I take it that if the September date is fixed, for your part you would like seven days to respond and then in reply to that, Mr Gleeson, how long?

MR GLEESON:   Three days, your Honour.

HIS HONOUR:   Subject to the fixing of the dates, I can fill in those particular days and, obviously, if the Adelaide date is fixed, it will be necessary to compress those days.  I might have to give you less than seven for that matter, Mr Gleeson, but I will have a look at it.  Will it be satisfactory if the Registry lets the parties know in the course of today?

MR GLEESON:   Certainly.

MR BENNETT:   Yes, your Honour.

HIS HONOUR:   It is not necessary, I do not think, for the parties to attend again.  Court will now adjourn.

AT 9.28 AM THE MATTER WAS ADJOURNED