Dimitrov v The Supreme Court of Victoria & Ors

[2017] HCATrans 173

[2017] HCATrans 173

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S204 of 2017

B e t w e e n -

PETER MICHAEL DIMITROV

Plaintiff

and

THE SUPREME COURT OF VICTORIA

First Defendant

JUSTICE CROFT OF THE SUPREME COURT OF VICTORIA

Second Defendant

BENDIGO AND ADELAIDE BANK LIMITED ACN 068 049 178

Third Defendant

ABL NOMINEES PTY LIMITED ACN 105 756 521

Fourth Defendant

GREAT SOUTHERN FINANCE PTY LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) ABN 47 009 235 143

Fifth Defendant

PETER CLARKE, AS TRUSTEE OF THE CLARKE FAMILY TRUST

Sixth Defendant

SAMANTHA BARBARA MURRAY

Seventh Defendant

RAYMOND CARL DRUMMOND

Eighth Defendant

ABL CUSTODIAN SERVICES PTY LIMITED ACN 097 889 720

Ninth Defendant

PIRIE STREET HOLDINGS LIMITED ACN 061 461 559

Tenth Defendant

JAVELIN ASSET MANAGEMENT PTY LIMITED ACN 136 367 194

Eleventh Defendant

GREAT SOUTHERN MANAGERS AUSTRALIA LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) ACN 083 825 405

Twelfth Defendant

JOHN CARLTON YOUNG

Thirteenth Defendant

CAMERON ARTHUR RHODES

Fourteenth Defendant

PHILLIP CHARLES BUTLIN

Fifteenth Defendant

JEFFREY ARTHUR SYDNEY MEWS

Sixteenth Defendant

PETER JOHN PATRIKEOS

Seventeenth Defendant

Directions hearing

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY

ON MONDAY, 28 AUGUST 2017, AT 2.17 PM

Copyright in the High Court of Australia

____________________

MR R.E. DUBLER, SC:   May it please the Court, I appear with MR Q.A. RARES for the plaintiff.  (instructed by Sasha Ivantsoff, Solicitor)

HIS HONOUR:   I have a submitting appearance for the first and second defendants. 

MR A.C. ARCHIBALD, QC:   May it please the Court, I appear with my learned friend, MR D.C. GRATION, for the third, fourth, ninth and tenth respondents.  (instructed by Allens Lawyers)

HIS HONOUR:   There is no appearance for the fifth to eighth defendants, a submitting appearance for the eleventh defendant and no appearance for the twelfth defendant.

MR G.K.J. RICH, SC:   May it please the Court, I appear with my learned friend, MR B. HANCOCK, for the thirteenth to fifteenth defendants.  (instructed by Arnold Bloch Leibler)

MR T.W. MARSKELL:   May it please the Court, I appear for the sixteenth and seventeenth defendants.  (instructed by Moray & Agnew)

HIS HONOUR:   Thank you.  Mr Dubler.

MR DUBLER:   Could I commence, your Honour, by a brief outline of the case and then I would like to move to some procedural issues relating to some of the missing parties and if I could move then immediately to the directions we seek.

HIS HONOUR:   Yes, certainly.

MR DUBLER:   So just by way of initial outline, the orders of Justice Croft extinguish group members’ individual defences or cross‑claims that are not covered by the common issues in the proceedings. 

HIS HONOUR:   Mr Dubler, I do not want to cut you off before you get into the substance of the matter, but it might be convenient if you deal first with the question of substituted service, given that there are a number of parties who are not currently before the Court.

MR DUBLER:   Yes.  The parties that is relevant for are the fifth and twelfth defendants - sorry, the sixth, seventh and eighth defendants.  They are the natural persons being formerly plaintiffs below.  Now, we have attempted service at their last‑known address, but without success.

HIS HONOUR:   There is also the thirteenth defendant.  I take it that there is no issue that arises any more in relation to Mr Rich’s client.

MR DUBLER:   I was not aware of any issue with the thirteenth defendant.

HIS HONOUR:   You no longer seek substituted service in relation to the thirteenth defendant then?

MR DUBLER:   Yes.  No, we have been advised that they are accepting service and will be appearing.  So the thirteenth have dropped off.

HIS HONOUR:   Yes.

MR DUBLER:   So it is only the fifth and the twelfth, your Honour.

HIS HONOUR:   Sixth, seventh and eighth, I think you mean.

MR DUBLER:   Sixth and eighth.

HIS HONOUR:   And seventh.

MR DUBLER:   Six, seven and eight – we have it right now – formerly plaintiffs.  We point out that on the relief we seek they are not actually affected but for abundant caution we wish to bring them in and as I was saying they were not able to be served at their last‑known address so we seek substituted service on their solicitors and we have a summons and affidavit in support for that relief.

HIS HONOUR:   There is some difficulty with the affidavit in relation to that. 

MR DUBLER:   Yes.

HIS HONOUR:   For example, it does not appear that there is any evidence that there have been any searches that have been conducted of any public records at all as to any of their addresses.  There is no evidence of any of the detail or even the dates of the occasions when the process server attempted to serve the eighth defendant.  There is also no evidence as to any other reasonable steps that have been taken or even whether the substituted service would have the effect of bringing these proceedings to their notice.

MR DUBLER:   Yes.  Well, I think that is true, your Honour.  If your Honour was minded to think the application was premature, I do not think I could really be heard against further steps being taken.  Can I take that as being the appropriate course in the first instance?

HIS HONOUR:   Yes.

MR DUBLER:   We were particularly anxious if there were any urgent matters that may involve them that we should move sooner rather than later but we do not anticipate that so it would be appropriate if further steps are taken, those matters having been brought to our attention by your Honour.

HIS HONOUR:   I would hope and expect that those matters could be dealt with rather quickly anyway.

MR DUBLER:   Yes.

HIS HONOUR:   It would seem to me, subject to anything that counsel for the defendants who are present have to say, that there is real difficulty, even if substituted service had been granted, in proceeding to hear the substance of this matter in the absence of several of the parties.

MR DUBLER:   Yes, I think that – I could not be heard against that, your Honour.  So perhaps if we defer – simply note that the summons is

being deferred and we will advise your Honour in due course when there is further evidence.

HIS HONOUR:   I will hear then from Mr Archibald, Mr Rich and Mr Marskell as to whether they wish to add anything to that.

MR ARCHIBALD:   For our part no, your Honour.  We were unaware of such a circumstance.  Your Honour will appreciate we are keen to progress the matter as best we can and as fast as we can to an early determination.  We are seeking summary disposal.  We appreciate that that would be very difficult if some of the interested parties have not been served, even though, as their position appears on the record, they would be in the same interests as our interest, but we do appreciate the difficulty of the Court proceeding where some of the parties to the proceeding have not yet been served by whatever means.

HIS HONOUR:   Yes.  Mr Rich or Mr Marskell, is there anything you wish to add?

MR RICH:   The only additional matter which we would add, your Honour, is that there may be a difficulty which extends beyond the plaintiffs that have been – or rather the defendants that have been named in this process because, as your Honour will appreciate, the relief sought purports to affect all group members.  At the moment nobody is here, or proposed to be here representing group members as a whole. 

Now, the named plaintiffs obviously had a particular capacity in the proceedings in the Supreme Court of Victoria.  They do not have that capacity here.  It is really the plaintiffs’ difficulty, but we simply raise it because it is another matter which is going to have to be grappled with at some point in time.  If one were to set aside a settlement insofar as it affects group members, at the moment group members are not here.

HIS HONOUR:   I am not sure at the moment precisely what the nature of the relief really is or what it is directed at.  It appears to be directed at quashing and seeking prohibition in relation to the orders made by Justice Croft, but it is unclear whether that would have any effect on the deed of settlement itself.  Order 2, for example, was an order which has the effect, in broad terms, of granting authority, does it not, to the lead plaintiffs to act on behalf of all group members?

MR RICH:   Yes, with respect, I think your Honour is right insofar as order 2 of Justice Croft’s orders is concerned, although if one looks at, for example, the summons filed in these proceedings, in paragraph 2, the writ sought is to set aside the orders of Justice Croft insofar as they purport to bind group members – plural.  We simply raise that.  It is for the plaintiff ultimately to formulate the relief it wants, but if your Honour is asking questions about parties, we felt it was appropriate simply to raise that there may be an additional matter that needs attention.

HIS HONOUR:   Yes.  Mr Marskell.

MR MARSKELL:   I have nothing to add, your Honour.

HIS HONOUR:   Yes.  Mr Dubler, there are a few matters, I think, which might be useful for me to raise now that you might consider before this matter is brought back on, assuming that it is possible for the plaintiff either to serve personally the sixth, seventh and eighth defendants, or to address the matters I have raised in relation to substituted service. 

One of the issues is the point that has just been raised by Mr Rich which is how the plaintiff proposes to formulate the relief sought in circumstances where not all group members will be before the Court. The second point is referred to, I think, in passing by some of the submissions and that is the question of whether it is really appropriate for the matter to be referred to a Full Court or for a case to be stated where, first of all, there may be rights of appeal that your client has – I do not say that there are, but there may be under section 33ZC of the Supreme Court Act – and if there are it appears that no attempt has been made to agitate those rights of appeal. 

That may be relevant because the questions for appeal may concern questions of construction either of order 1 or order 2 of the orders of Justice Croft of the Supreme Court of Victoria.  The second question is whether there are still underlying issues that are extant in those proceedings which should be dealt with before any referral of this matter to the Full Court, even if I were to reject the submissions of the defendants that a referral is not appropriate because the arguments have no prospects of success.

Some of those underlying issues concern matters such as questions of construction of the deed itself.  It has been said on numerous occasions in this Court that it is not helpful to determine issues which, I think, even on your submissions would be regarded as novel issues to the extent that they seek to overturn established decisions in this Court, without the background of questions of construction having been determined.  It may be that those questions of construction are questions that would be agitated if default judgment is set aside and they are matters which I have not seen any submissions on and I think at some point I would need to hear submissions about them.

The third related matter concerns the issue which I think at one point in the submissions is described as a threshold issue of who is an officer of the Commonwealth and whether this Court should overturn the decisions in Murray and Cormie and the decision in Bateman.  Those questions may indeed not arise at all if a right of appeal were agitated or if the matter were to proceed through the route of a hearing after a default judgment is set aside and any appeals from that.  These are all procedural issues which I think could usefully be addressed at some stage.

MR DUBLER:   Yes.  I am happy to address your Honour at least on most of those issues now, if that is what your Honour wishes.  Could I firstly though just mention one other procedural point?  Your Honour is dealing with the parties.  The fifth and twelfth defendants – they are both in liquidation and they have been served but the attitude of those parties was that leave would be required to proceed. 

Now, under section 500(2) of the Corporations Act the leave that is required does not include this Court.  We had the view when we have informed the liquidators of this that the right of this Court to exercise its constitutional supervisory jurisdiction as we have invoked cannot be curtailed or made conditional upon the right of a lower other court and that the Corporations Act must be read as leave only being required of other courts, but not of the High Court exercising its supervisory constitutional jurisdiction and we will continue to put that view forward to the liquidators.  They have very much – little interest in the proceedings we would have thought in any event.

HIS HONOUR:   What about the remaining group members who are not party to this proceeding but against whom your relief would, either directly or indirectly, affect?

MR DUBLER:   Yes, I will deal with that directly, your Honour.  We do not see any of the group members to be notified, simply because the way we put our relief is it could only be for the benefit of group members.  It cannot be to their prejudice and so they only get additional rights if we succeed to put forward their individual claims if they have any and if the matter has not already been settled.  So that it would not be necessary to go down some path of serving them.  So that is the approach we have taken, your Honour.

HIS HONOUR:   All right.  I do not at the moment need you to address any of the procedural points I have raised.  I raise them only because not all of them have been addressed in written submissions and when we reconvene it would be useful for you to address all of those points.

MR DUBLER:   Yes.

HIS HONOUR:   How long do you expect you would need to either address the matters which I have raised to effect personal service of the sixth, seventh and eighth defendants, or alternatively to file a supplementary affidavit dealing with those matters and why substituted service should be granted?

MR DUBLER:   I think, at least for abundant caution, particularly the parties matter, would be to allow for 21 days, your Honour.  Might I say immediately that we have addressed in our submissions why failure to exhaust appeal rights should not be regarded as the bar essentially because we say there are no appeal rights and also there are some exceptional circumstances, being the allegation of want of any jurisdiction, constitutional matters, the fact that the Victorian Full Court has already dealt with substantially similar issues, all combined to mean that going back for an appeal would just be an essentially futile exercise or so overwhelmingly inconvenient to particular facts here.

HIS HONOUR:   You said the Full Court in a separate matter.  Has that dealt with the question of construction of an order which is similar to order 2 of Justice Croft’s?

MR DUBLER:   Yes.  So not precisely the same format of the challenge, but in substance it dealt with how the settlement deed should be construed in respect of group members’ individual claims.

HIS HONOUR:   But you seek to dispute that construction in any event in the application to set aside the default judgment and in the defence that you would then raise?

MR DUBLER:   Yes, in one aspect, that is so, but it would not - your Honour, part of the defence we would raise a construction point, part of the defence we would have to admit is released by the deed.  But so far as release under the deed is concerned, the Full Victorian Court has already dealt with that issue and the intersection with the orders of Justice Croft.

HIS HONOUR:   All right.  Mr Archibald, Mr Rich and Mr Marskell, is there any difficulty with the Court relisting this matter as soon as possible after a 21‑day period?

MR ARCHIBALD:   No, your Honour.

MR RICH:   No, your Honour.

MR MARSKELL:   No, your Honour.

HIS HONOUR:   Unless there are any further orders sought, I would simply make an order adjourning this matter.  Registry will contact the parties with a date for the hearing, which I hope will be for all of the applications once the question of substituted service or personal service has been dealt with - at a date to be set some time after 21 days from today.

MR ARCHIBALD:   If the Court pleases.

MR DUBLER:   Yes, very good, your Honour.

HIS HONOUR:   The Court will adjourn.

AT 2.39 PM THE MATTER WAS ADJOURNED