Deep Investments Pty Ltd v Robinson & Ors; Deep Investments Pty Ltd v Emanuel; Deep Investments Pty Ltd v Casey & Ors

[2019] HCATrans 162

[2019] HCATrans 162

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S16 of 2019

B e t w e e n -

DEEP INVESTMENTS PTY LTD ACN 000 339 319

Applicant

and

SIMON ROBINSON

First Respondent

RAVEN CAPITAL PTY LTD ACN 149 962 649

Second Respondent

QWL PTY LTD ACN 096 284 383

Third Respondent

Office of the Registry
  Sydney  No S17 of 2019

B e t w e e n -

DEEP INVESTMENTS PTY LTD ACN 000 339 319

Applicant

and

KEVIN EMANUEL

Respondent

Office of the Registry
  Sydney  No S18 of 2019

B e t w e e n -

DEEP INVESTMENTS PTY LTD ACN 000 339 319

Applicant

and

KEVIN CASEY

First Respondent

PAUL CLARKE

Second Respondent

CBC PARTNERS PTY LTD ACN 104 815 483

Third Respondent

Applications for special leave to appeal

KIEFEL CJ
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 AUGUST 2019, AT 11.49 AM

Copyright in the High Court of Australia

____________________

MR P.J. DUNNING, QC:   May it please the Court, I appear with my learned friend, MR W.E. WILD, for the applicants in all three matters.  (instructed by K2 Law)

MR A.S. MCGRATH, SC:   May it please the Court, I appear with MR S.E. GRAY for the Robinson respondent in the first matter.  (instructed by Barry.Nilsson. Lawyers)

MR D.L WILLIAMS, SC:   May it please the Court, I appear with my learned friend, MR A.C. HARDING, for Mr Emanuel who is the respondent to the matter in S17/2019.  (instructed by K & L Gates)

MR J. STOLJAR, SC:   I appear with my learned friend, MR M.A. FRIEDGUT, for the respondents in matter S18/2019.  (instructed by Minter Ellison Lawyers)

KIEFEL CJ:   Yes, Mr Dunning.

MR DUNNING:   Thank you.  Chief Justice, I was proposing to deal with all three together if that is convenient.

KIEFEL CJ:   Yes, thank you.

MR DUNNING: Thank you. Your Honours, Deep Investments suffered a loss of circa $10 million when a client of Mr Robinson and the financial organisation he worked for called Raven, who are the respondents in S16/2019. As a consequence, proceedings were commenced in the Supreme Court of New South Wales, ultimately making claims in respect of agency and contract and for contraventions of the ASIC Act, and it would be fair to describe those claims as complaints about the quality of the service that Mr Robinson had provided in relation to the giving of that financial advice. Your Honours see those matters critiqued or explained at reasons 87 to 91 on pages 150 and 151 of the application book. As their Honours in the majority found, no issue of honesty was raised in relation to Mr Robinson in those proceedings and your Honours will see that at page 150 of the application book at paragraph 89.

Your Honours, the proceedings in the Equity Division proceed for four days and at the end of those four days there is judgment for the defendant with each party to bear their own costs, and your Honours will see that recorded in the majority’s judgment at paragraphs 95 and 96.

EDELMAN J:   That was the consent judgment?

MR DUNNING:   It was a consent judgment, Justice Edelman, yes.  As I say, a consent dismissal.  There were no findings attendant upon it and in a sense reinforced by the fact that each party bears their own costs under that consent judgment.  Immediately prior to that trial, the Deep Investments solicitors had received a piece of correspondence from the in‑house counsel of Mr Robinson’s former employer, Wilson HTM, and that was what is known as an FS80 notification to ASIC and a letter that was highly critical of Mr Robinson.

Your Honours will see that at paragraph 37 in the majority’s reasons at page 139 of the record and in particular what is set out at paragraph 38 captures the essence of what was said about Mr Robinson by his former employer.  The findings that were received on the eve of the trial are set out at paragraphs 93 and 94 of the majority’s judgment at pages 150 and 151.

Critically, their Honours in the majority, as did Justice Perram in dissent and as had Justice Gleeson at first instance, held that it was not unreasonable not to have raised in the Supreme Court proceedings a claim as was now raised in the Federal Court proceedings that was based on the dishonesty of Mr Robinson.  That is, had it been brought to their attention, they simply would have terminated his services and thereby would never have been exposed to the risk of that or any other loss.  Your Honours will see that on page 162 of the application book in paragraphs 130 to 131.

EDELMAN J:   That may be so, but is not the real difficulty that the findings in the Full Court as to the way – or certainly of the majority as to the way the case was pleaded and in relation to all of the respondents was effectively to require the relitigation of the loss issue from the first trial?

MR DUNNING:   Justice Edelman, we would respond to that in this way.  Justice Perram, who I was going to go to first, sets out the paragraph of the pleadings, so one can there see the basis on which the case was propounded in the Federal Court.

EDELMAN J:   The construction of a paragraph of various pleadings is not usually an issue for special leave.

MR DUNNING:   No, I accept that.  The second matter, your Honour, that would merit a grant of leave is this.  Ultimately, whether there was a claim for loss or an account of profits was only ever an aspect of alternative relief available in respect of the same cause of action.  The cause of action asserted in the Federal Court proceedings never changed, whether ultimately the relief that might have been sought were an account of profits or relief of a compensatory nature for the loss that had been suffered, and our submission is the law of this Court is clear that that is an election that the successful plaintiff is not put to until the point of judgment. 

Now, this was a case where there had not even been a defence put on, so the occasion for a plaintiff to make that election as to what sort of relief would have been appropriate had not arrived and compounded, if we may respectfully submit, by the fact that because of the way the proceedings proceeded below over the objection of Deep Investments, you did have a defence and a reply that would have provoked all of those sorts of inquiries, so that what they were concerned with was relief as opposed to, in our submission, cause of action.

KIEFEL CJ:   The litigation leading to the consent order and the claim subsequently sought to be made had in common a claim essentially that there was a mismanagement of the share portfolio.  That is the real point, is it not, made in the Full Court, that the loss in each case was completely dependent upon that being made out.

MR DUNNING:   In our submission, that is what the members of the Full Court say – sorry, the majority ‑ because in the former case the cause of action was that, “You mismanaged our funds and we suffered a loss”.  In the latter case it was to say, “You withheld information that you were duty‑bound to give us and we would have terminated your retainer and” ‑ ‑ ‑

KIEFEL CJ:   Which is to say, we would have avoided the loss which is the mismanagement of the share portfolio.  The loss remains the same.

MR DUNNING:   The loss itself remains the same, but the matters that give rise to the cause of action are not the same, in our submission.

KIEFEL CJ:   Then there is the tactical dimension to all of this, is there not, that feeds into the abuse of process point which is that the parties subsequently ‑ or some of the parties subsequently sought to be brought in were left out of the original action so that they could be useful in that action.

MR DUNNING:   And those points were ultimately resolved in Deep Investments’ favour, and that is why there is a finding of all four judges who have been concerned with the matter that it was not unreasonable for Deep Investments not to have raised this issue in the Supreme ‑ ‑ ‑

KIEFEL CJ:   That just goes to the question of its knowledge about the document, does it not?

MR DUNNING:   Well, if it was not unreasonable for it not to have raised the issue, it is more than that.  It is an assessment that there was nothing abusive in it not agitating that proceeding then because ‑ ‑ ‑

EDELMAN J:   Unless of course the causation issue is going to be exactly the same.

MR DUNNING:   Well, in our respectful submission, that does not necessarily follow.  If we take the extreme example the majority took, say you did not know about the letter at all until after the Supreme Court proceedings had been dismissed by consent, then you could never re‑agitate that issue, notwithstanding something was withheld from you that those who withheld it were duty‑bound to provide and would have alerted you to a claim against them different to the one you were then propounding.

EDELMAN J:   Well, it may have been different if the second time around the case was argued on the basis that proof of loss or a claim for compensation for breach of fiduciary duty did not invoke the usual considerations of causation, but that type of case does not appear to have been put.

MR DUNNING:   Because, in our respectful submission, the occasion to make that decision had not arisen, because to accept that would mean that it would be to ultimately deny plaintiffs in breach of fiduciary duty cases the entitlement to elect right through to judgment whether to ‑ ‑ ‑

EDELMAN J:   No, the plaintiffs have to plead their case and they elect at the end.

MR DUNNING:   Well, in our respectful submission, Justice Edelman, that is not how this Court has described the matter.  If I can perhaps give your Honours the shortest and easiest reference to that, can I ask your Honours please to go to page 250 of the record and at the top of 251 we quote what Justice Brennan said in Anshun adopting, as his Honour did, the speech of Lord Atkin in United Australia v Barclays Bank where his Lordship in terms expressly contemplated that one might amend to raise an alternative basis of relief.

EDELMAN J:   Nothing in that quote says that when you are pleading a claim for compensation you can alternatively later on amend and plead the claim for compensation as though causation is not required.  You put it upfront, explain the way you want compensation, and if you are going to bring your case on the basis of ordinary causal tests for breach of fiduciary duty, then the problem is that is the way the issues were run in the first trial.

MR DUNNING:   Well, when one says it is the way the issues were run in the first trial, in our respectful submission, no, because what in fact happens in the Federal Court is, without a defence being put on and without a reply, the very thing that would have provoked an alternative plea were it met with, “You cannot plead that against us.  You cannot plead that relief against us on this cause of action”, the reply would then have provoked – but that is not how the issue was agitated before Justice Gleeson.  It is an issue that emerges, in our submission, in the decision in the Court of Appeal – sorry, in the reasons of the majority in the Full Court. 

Had there been at a minimum that exchange of pleadings, you would have at least exposed that issue, but it had not been exposed because at that stage we were concerned only with the statement of claim that had been issued.  So to say against Deep that it litigated the case in a certain way is, in our respectful submission, not fair to it because it commences proceedings, they do not go through to a pleading stage, it seeks one form of relief which is accepted as available to it at first instance, and in a case that was argued on orthodox bases of res judicata, issue estoppel and ‑ ‑ ‑

EDELMAN J:   It is not really a question for reply though.  The matters raised before Justice Gleeson at first instance, you could easily have put in an amended pleading which said, “Well, we have put the case on this alternative basis”.

MR DUNNING:   If that were the case we were meeting before Justice Gleeson we might have done that, but the case being met before Justice Gleeson was there was res judicata ‑ well, that failed, for fairly obvious reasons, as did the issue estoppel – or that it was an abuse of process and the abuse of process case was put on the grounds that Deep Investments should have aborted the Supreme Court trial and run the FS80 issue in the Supreme Court.  On that factual issue, Deep won, not lost.  So it was not, in our respectful submission, an issue agitated at first instance.

KIEFEL CJ:   This is to say that the court below was wrong about how the litigation was run.  What is the special leave point?

MR DUNNING:   The special leave point, Chief Justice, is this.  Can I take your Honours please to page 159 of the application book and take your Honours to the critical passages of the reasoning of the majority, with a view to then taking your Honours to Tomlinson to demonstrate that is different to how this Court identified in Tomlinson.  At paragraph 120 at the foot of 159, you will see that about halfway through that paragraph the majority ‑ ‑ ‑

KIEFEL CJ:   What we are looking for, I take it, Mr Dunning, is that the court has created a new test ‑ ‑ ‑

MR DUNNING:   Correct.

KIEFEL CJ:   ‑ ‑ ‑ for this process?

MR DUNNING:   Yes, sorry, Chief Justice, that is correct.  Just past halfway:

However, as we have observed, those claims depend upon Deep Investments demonstrating that there was mismanagement of the po1ifolio . . . This means that inherent in the three claims is a case that invites the court to determine a discrete issue in a manner that is contrary to the outcome of the Supreme Court proceedings.

The only outcome in the Supreme Court proceedings was res judicata.  There was no other outcome because it was a consent judgment for the defendant.  Then:

This gives rise to a different form of abuse [of process], namely an inconsistency with the conduct and outcome of the Supreme Court proceedings ‑ ‑ ‑

EDELMAN J:   “Conduct” is doing the work there, rather than “outcome”.

MR DUNNING:   That, in our respectful submission, is not how the majority frame the test.  They give it, respectfully, the appellation of “different” and they ‑ ‑ ‑

KIEFEL CJ:   It is different as between 1, 2 and 3 on the one hand, and 4.  It is an explanation of one of the grounds, is it not?

MR DUNNING:   In our submission, no, Chief Justice, because that is what causes them to say “namely an inconsistency with the conduct and outcome”.  Now, in our submission, “conduct” refers to those matters that are picked up by Anshun estoppel and, more particularly, abuse of process, and “outcome” are those matters that are picked up by the concepts of res judicata and issue estoppel; whereas their Honours came up with this combined, and we say that is the expression they give to “different”.  Your Honour, that is reinforced, in our submission, by what appears at 123 in the last sentence:

It is not necessary to identify the precise basis on which the Supreme Court proceedings were dismissed to reach this conclusion.

In our submission, that is inconsistent with the orthodox approach to determining issues such as this.  If I can then take your Honours please to 133.

EDELMAN J:   Is that any different from the underlying basis upon which the majority concluded in UBS v Tyne?

MR DUNNING:   Sorry, Justice Edelman, the ‑ ‑ ‑

EDELMAN J:   The approach taken in 123 is not fundamentally different from the approach taken in UBS v Tyne, is it?  It will always depend on the circumstances of a particular case, but why is that not potentially sufficient to amount to an abuse of process?

MR DUNNING:   Because, Justice Edelman, in our respectful submission, what occurs in UBS v Tyne is there is careful analysis of those issues that were in fact alive and determined in the earlier proceedings and how they would then be touched upon and impacted upon by the litigation of the subsequent proceedings.

EDELMAN J:   So what this really is then, it is a complaint that there was not enough analysis of the way in which the proceedings that were compromised by consent judgment overlap with the subsequent proceedings.

MR DUNNING:   Put that way, it would not attract a grant of special leave.  Our position is to say their Honours propounded a formulation that is different to that found in Tomlinson and then adopted by all members of the Court, the majority and the minority, in UBS.  Can I give your Honours please two other references.  Paragraph 133 at the top of 163:

The consent judgment in favour of Mr Robinson and the Raven Companies was a determination that they had not mismanaged the portfolio as alleged.

Now, it cannot have been a determination in the issue estoppel sense, and that is the vice, in our respectful submission, of the test that the Full Court adopted and why this is more than just a case of the wrong test being applied, but instead an occasion of a court propounding a test and then applying it to a result that is wrong.  You see that again reinforced at 138 on page 164 a bit past halfway:

Unlike the case with the claim against Mr Robinson and the Raven Companies it cannot be said that the judgment determines and rejects the whole of any liability for mismanagement.

Now, that is a complete, in our respectful submission, departure from the orthodox analysis, for example, of Justice Goldberg in Safeway Stores of what the consequence of a judgment by consent for the defendant is that it does not determine any issues.  All it does is create res judicata.  Yet in the composite test that their Honours have promoted you get, in our respectful submission, this erroneous result and it will lead to distorted outcomes.  Your Honours, I am very mindful of the time.

EDELMAN J:   Just one quick question ‑ do you complain about anything that is said in 115 about the approach that is described from Tomlinson and UBS v Tyne which their Honours purport later to be applying?

MR DUNNING:   No, I do not, and it is a useful illustration of how different the facts in Tyne were to the facts here.  Sorry, I do not mean to be staccato, but I am just mindful of the time.  Can I move to the second topic that, in our respectful submission, would found a grant of special leave, and that is their Honours did not consider it necessary to consider all of the merits of the case.  Can I ask your Honours please to go to paragraph 124 that starts on page 160.

KIEFEL CJ:   How does that become a ground for special leave?

MR DUNNING:   Because in Tomlison, as I say, again adopted in UBS, the courts adopt the language of the House of Lords that it is a broad merits‑based inquiry in which all circumstances have to be taken into account and the circumstance that was rejected here was the injustice to Deep which would seem to be a circumstance of particular significance.  When one looks at how the plurality in UBS had picked up that passage, it becomes clear that it is not permissible to approach the matter on the basis that injustice can be ignored.  Chief Justice, I am mindful of the fact that the red light is on.

KIEFEL CJ:   You have a number of parties against you.  How much longer would you need, Mr Dunning?

MR DUNNING:   Five minutes or so.

KIEFEL CJ:   Yes.

MR DUNNING:   Thank you very much.  On that basis of not meaning to take more than five minutes, Justice Edelman, I moved a little briskly ‑ apologies if I did – in your questions; more concerned about the time.  Was there any aspect of that earlier matter that I left unanswered?

EDELMAN J:   No, that is fine.

MR DUNNING:   Thank you.  Can I take your Honours please to the passage in UBS in the plurality’s reasons at paragraph [7].

KIEFEL CJ:   Yes, Mr Dunning.

MR DUNNING:   Thank you, your Honour ‑ where your Honour the Chief Justice and Justices Bell and Keane said this:

Whether conduct of this description rises to the level of an abuse of the processes of the court is a determination that requires consideration of all the circumstances.  As Lord Bingham of Cornhill explained, that consideration requires the court to make:

a broad, merits‑based judgment which takes account of the public and private interests involved –

and then critically:

and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. 

All four judges find in Deep’s favour that the issue should not have – that is, that it could not be said against Deep you could not/should have brought it in the first set of proceedings.  So, to use the language adopted by the plurality in UBS, the crucial question was not answered adversely to Deep, but it was actually answered in the affirmative.

If I can then take your Honours please to the test that was applied by the plurality, starting on page 160, paragraph 124, they were speaking of the Wilson letter and the FS80:

We would reach the same conclusion if those documents had not been known to Deep Investments until after the Supreme Court proceedings had concluded.  Further, in our view, had the claims that were to be advanced based upon those documents not depended upon a need to establish that there had been mismanagement of the share portfolio then it would have been difficult to conclude that the failure to try and seek to include those claims in the Supreme Court proceedings at such a late stage was unreasonable.

Then their Honours go on to canvass what might or might not have happened in the Supreme Court proceedings.

KIEFEL CJ:   Which is to say that what is necessarily sought to be re‑agitated is the mismanagement of the share portfolio.

MR DUNNING:   But their Honours in terms – well, sorry, at the moment I am endeavouring to demonstrate that their Honours had picked a test that does not sit appropriately with the test adopted in UBS because in the last sentence they say:

If there was a proper basis for such a duty then there would be an injustice in allowing parties who had breached that duty to, in effect, take advantage of their breach as a reason why the proceedings could not be brought.  However, for reasons we have given it is not necessary to consider such matters.

So their Honours reject the question of injustice as a relevant consideration.  Now, in our submission, that is to propound a test that is inconsistent with that that has been mandated in UBS. 

EDELMAN J:   They only say that it is unnecessary in the circumstances of this case to consider it.

MR DUNNING:   To which, Justice Edelman, our response would be to say that the test that was adopted in UBS was one that said one must consider all of the relevant factors, and the injustice to a party who is not blameworthy for the point not coming forward in circumstances where the parties who are blameworthy are the defendants seeking to summarily determine the proceedings, must be a relevant consideration, and it is not a proper approach to such cases to ignore that evidence.  It is inconsistent with the holding of this Court and, as we say, it is not just that their Honours in the majority, respectfully, got it wrong; it is that they propounded a way of dealing with cases like that, no doubt tied to the formulation that their Honours had that led to that result.

Your Honours, can I then move to the question of the interlocutory application which is the subject of one of the grounds of special leave, and I will deal with it briefly because I have taken your Honours to the relevant passage.  Even if the majority were correct in their approach at a time when nothing had been litigated in the Federal Court, no issue had been brought for determination.  Deep had regularly engaged the jurisdiction of the court.  It had not seen the defence.  They had not had an opportunity to reply.

It deals with the case on a certain basis at first instance, then on appeal it is dealt with on a basis that was not the basis on which it had been disposed of at first instance.  When it sees those reasons it said, “Well, if it is that basis, then it purely goes to relief and we would be entitled to a different relief”.  To say that they had litigated the issue on that basis is, in our respectful submission, not to give proper content to what in fact was litigated in the circumstances in which it was litigated, which I have just described to your Honours.  Now, if that is right, then the approach of the majority was wrong and it was inconsistent with what Justice Brennan had said ‑ ‑ ‑

EDELMAN J:   The relief you wanted was an opportunity to replead.

MR DUNNING:   Yes.

EDELMAN J:   Did you put a proposed repleading before the Full Court that you would suggest would have been a way to address any concerns?

MR DUNNING:   I think it may have just been the application.  I could not give your Honour – the outline, as I understand – as I recollect, I should say – the outline as I recollect set out the nature of the alternative relief sought but I am sorry, Justice Edelman, I cannot with sufficient confidence tell you that there was not an amended pleading.  It identified the alternative relief that was sought, and that their Honours’ approach in that regard was attended, in our submission, with error of a principle that would invite a grant of special leave.  Can I take your Honours please to the interlocutory judgment which starts on page 185 of the book, but can I take your Honours to page 192, starting in paragraph 8 in the fourth line:

In effect, Deep Investments asks the Court to grant leave to allow it to amend its claim to plead a different case –

It was not a different case.  It was the same case.  It was a breach of fiduciary case.  It was different relief in respect of that case, and your Honours will see that that is the way it is developed all the way through.  Again, in paragraph 9, third line:

It says those new claims can be advanced –

Then in paragraph 11:

that it seeks to authorise a new claim of a kind not adjudicated in the appeal.

In paragraph 13, second line:

The Full Court should not entertain on appeal what is, in substance, an application to bring a different type of claim ‑

There was no different type of claim.  It is to, in our respectful submission, completely misunderstand the distinction between a claim and the various forms of relief available in respect of ‑ ‑ ‑

EDELMAN J:   The main difference was the account of profits, was it?  That was the different form of relief?

MR DUNNING:   No, the other form is that in fact, as was dealt with in detail in the written submissions on the interlocutory application, an alternative basis compensatory in nature was to say that you did not actually have to prove the cause of the loss was Robinson’s misconduct.  You simply had to prove that, but for his dishonesty, you would have removed the money and it would not have been there to be lost.  So it did not matter whether it was lost through his misconduct, it was lost because the organisation became insolvent, it was lost by some other reasons; it could have been lost by a perfectly unremarkable reason but would not have been available to have been lost if people had complied with their duties, and it is for that reason that it is wrong, with respect, to talk about it being a new claim.

EDELMAN J:   These are issues that are being agitated post‑judgment.  In other words, they were not issues that were fully agitated at the hearing before the Full Court.

MR DUNNING:   No, because at the hearing before the Full Court we were there to argue about, as we understood it, whether there was res judicata – unsurprisingly, there was not ‑ whether there was an issue estoppel – unsurprisingly, there was not – and whether it was an abuse of process not to have amended in the Supreme Court to have raised the FS80 there, which we won on the facts.  So we simply did not have notice of the point, and had we, the point to make was you could have run an account of profits or you could simply have said, “We would not have had the money there to be exposed to the loss”. 

Now, that in a visitation jurisdiction might justify a grant of special leave in any event, but I do not need to rely upon that because it is sufficient, in our submission, for your Honours to be satisfied that as a result of that error the court then went to deal with the case on a basis that is different to the way the court identified the various estoppels and abuse of process. 

In Tomlinson – and I will not trouble to take your Honours to it; you will be familiar – but the Court in Tomlinson in the plurality carefully identified res judicata and what it amounts to ‑ and plainly that is not here – issue estoppel, which plainly is not here, Anshun estoppel which does not arise here because there is no risk of inconsistent judgment for the same issue estoppel reasons, and then the abuse of process in the broader sense, but as I have taken your Honours to, the test for abuse of process is also not met here. 

That is why the majority do not approach it that way, because the answer would inevitably be, as Justice Perram would have found, and as Justice Gleeson had found at first instance, and that is why their Honours do resort to a different test that has an application and a concern broader than just the interests of these parties, because otherwise in later cases in respect of this like issue, parties like Robinson and Raven would be able to say, “Well, we might have withheld it from you even though it was our duty to give it to you, but because you agitated questions of damages in that former case, even though there were no issue estoppels, you might not agitate them again”.  That would, in our respectful submission, distort the law, it would confound the purpose of abuse of process, and it should be remedied by this Court. 

Can I make only two other brief submissions.  In relation to the prescriptive/proscriptive issue, it would be plain your Honours would only grant us leave in that respect if we were successful in a grant of leave on what I will describe as the primary points I have just dealt with.  It is said against us, well, it is a pleading point; it was not dealt with in the majority.  I appreciate that, but there is no other way of resolving that controversy between Breen and Daly which in fact your Honour Justice Edelman wrote about in the Federal Court, without it coming to this Court in this way.  So that if we were successful in getting a grant of leave on those primary points, in our respectful submission, for expediency reasons ‑ and it is plainly vexing courts below this Court.

In relation to the agency point that only concerns Mr Emanuel, true it is there are two decisions of this Court which we say make it clear that merely because an agent has a duty to pass on information does not mean that that knowledge is imputed to the principal.  You need something more.  The principal has to have set the agent up to receive communications like that.  Whilst we say the law in that respect is clear from Smits v Roach in this Court, the fact that Justice Gleeson found differently and the fact that occupied I think about a quarter of the hearing in the Full Court indicates that is an issue that is vexing the profession and again, were there a grant of leave on the principal points, that would be a matter that for that reason we would say would attract a grant of special leave. 

Your Honours, is there anything else I can assist you with?

KIEFEL CJ:   Thank you, Mr Dunning.

MR DUNNING:   Thank you, your Honours.

KIEFEL CJ:   We do not need to hear from the respondents.

In our view no error of law is identified in the reasons of the majority of the Full Court.  No question of principle is raised.  Special leave in each matter is refused with costs.

AT 12.24 PM THE MATTERS WERE CONCLUDED