Dovuro Pty Ltd v Wilkins & Ors

[2003] HCATrans 598

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S357 of 2002

B e t w e e n -

DOVURO PTY LIMITED

Appellant

and

ROBERT JOHN WILKINS, EILEEN JOYCE WILKINS, TREVOR IAN WILKINS, SUSAN CAROLINE WILKINS and LOCHIEL NOMINEES PTY LIMITED AS TRUSTEE FOR THE R & E WILKINS FAMILY TRUST ALL TRADING AS R & E WILKINS

First Respondents

CROP MARKETING NEW ZEALAND SOCIETY LIMITED

Second Respondent

QBE INSURANCE (INTERNATIONAL) LIMITED

Third Respondent

Summons

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 MARCH 2003, AT 10.00 AM

Copyright in the High Court of Australia

__________________

MR J.E. ROWE:   May it please your Honour, I appear for the applicant to this motion.  (instructed by Long Howland Houston)

MR B.W. RAYMENT, QC:   May it please your Honour, I appear with my learned friend, MR M.M. MACROSSAN, for Dovuro.  (instructed by Griffith Hack Lawyers)

MR M. DEMPSEY:   If your Honour pleases, I appear for QBE.  (instructed by Wotton & Kearney)

HIS HONOUR:   Yes, Mr Rowe.

MR ROWE:   I sent to your Honour some copies of correspondence that was received and sent overnight.

HIS HONOUR:   Yes, I have seen those.  It might have relieved your solicitors of a problem of conflict of interest, might it not?  If there was not a conflict of interest already, it seemed to me it was pregnant with conflict of interest.  The notion that they could be acting for the liquidator at the same time as they are acting for the respondent in this case strikes me as unusual, to say the least.

MR ROWE:   Unusual, yes, your Honour, but the problem so far as the liquidator was concerned just on that question is that it had not been revealed that my clients were a potential creditor and so far as assisting the liquidator, they are really acting in the interests of a creditor.

HIS HONOUR:   That may be, but any proceedings by the liquidator would be brought, I assume, under 477, is it, of the Corporations Act in the name of the company.  So your solicitors would be acting for the company, the appellant, and at the same time acting for the respondents.  That strikes me as odd but, anyway ‑ ‑ ‑

MR ROWE:   Well, I accept that, your Honour, but it is in a different context, but, your Honour, that problem appears to have disappeared.

HIS HONOUR:   Yes, it has gone, Mr Rowe.

MR ROWE:   Your Honour, our simple position really is that the respondent became aware of the position of the liquidation and his situation a couple of weeks ago.  That creates for him a no‑win situation in this litigation.

HIS HONOUR:   Why?

MR ROWE:   Because, if he wins, there is no money.

HIS HONOUR:   So what?

MR ROWE:   So he cannot win anything.

HIS HONOUR:   Well, that is not a reason for depriving the appellant of its appeal.  The appellant may succeed in obtaining a finding that there is no liability.

MR ROWE:   That is so, your Honour.

HIS HONOUR:   You have security for costs.  You asked for a certain amount.  It has been specified.  I have to tell you I regard this as about the most hopeless application I have ever had to preside in in this Court, and that is saying something.

MR ROWE:   Well, that does not give me any encouragement.

HIS HONOUR:   Well, I suppose it does not.

MR ROWE:   Your Honour, look, the position simply is that with the situation of being informed of the liquidation so late in the proceedings – Wilkins is in a practical position where he really has nowhere to go and whilst I accept that it is before this Court on questions of principle, the practical effect is that the respondent, if he wins, he does not get anything; if he loses, he is exposed to the costs in the lower courts and ‑ ‑ ‑

HIS HONOUR:   So what?  I mean, if your client should never have got a verdict, it is right.  I am almost stupefied by this submission.  I have to tell you, Mr Rowe, I just do not understand it.  The appellant has an appeal on that says it is not liable.  You say the appeal ought to be vacated.  What, forever?

MR ROWE:   No, your Honour.  For the purpose of – we feel there is an opportunity to the respondent to negotiate a settlement but that opportunity to negotiate it has been lost because it has become aware of the applicant’s position so late and so close to the actual hearing.

HIS HONOUR:   So the business of this Court should be set aside on the chance that there may be an examination of the appellant’s offices which would produce evidence which will enable the liquidator to commence proceedings that may result in the setting aside of a mortgage in charge and the liquidator may then decide to settle the case with you?

MR ROWE:   In a nutshell ‑ ‑ ‑

HIS HONOUR:   I mean, this is the High Court of Australia.  You are asking this Court, with all the pressure of its business, to vacate a date of a case on for hearing next week.

MR ROWE:   I understand that, your Honour, and the only basis is the position in which a little farmer in Perth finds himself as opposed to the business of the High Court and, your Honour ‑ ‑ ‑

HIS HONOUR:   That has nothing to do with it.  The appellant has been granted special leave to appeal.  The appellant says, “We have no liability.”  And they are entitled to have it and they are entitled to have that determined.  Your costs of the appeal are secure.  You have asked for a certain amount to be given as security for costs and you have been given it.  So the only thing that is going to happen as a result of this appeal is that either you will win the appeal, in which case you will be in exactly the same position as you are at this moment or you will be in six months time, or you will lose it, as you ought to lose it, in which case justice will be done because you should never have got to the position where you are at the moment.  I have to tell you I am amazed at this application.

MR ROWE:   Your Honour, I cannot ‑ ‑ ‑

HIS HONOUR:   I understand, Mr Rowe, and I understand that clients insist on things being done and lawyers have to put arguments.  I fully understand that, but it just seems to me it borders on hopeless this application.

MR ROWE:   Your Honour, the fact that it is hopeless does not stop us from bringing it.

HIS HONOUR:   Not at all, not at all.

MR ROWE:   May it please your Honour.

HIS HONOUR:   This is a summons to vacate an appeal which is listed for hearing in this Court next week.  The appellant in the appeal, Dovuro Pty Limited, which is the respondent to the summons, is in liquidation, a liquidator having been appointed on 24 September 2002.  The applicant in the summons was not advised of the appointment of the liquidator until 5 February of this year.  The applicant relies on a number of matters in support of the summons. 

The first matter is that the appeal books should have been filed on 26 February and they were not served until 3 March with a consequent delay in filing of the appellant’s submissions.  However, this is not a ground to vacate the hearing.  Counsel for the applicant was counsel on the special leave and, if my recollection is correct, was counsel on the appeal in the Full Court of the Federal Court.  It is impossible to conclude that he is not familiar with the issues, the facts and the law.  The notion that a respondent does not have a case, or does not know its case, until it receives the other side’s submissions is unacceptable. 

Given the time a respondent has to file its submissions after receiving an appellant’s submissions, the only acceptable conclusion is that the Rules of the Court proceed on the assumption that the respondent will have its own case prepared prior to receiving the appellant’s submissions.  The short interval between receiving the appellant’s submissions and filing its own submissions are designed to enable the respondent to deal with the individual submissions of the appellant which the respondent’s submissions have not already dealt with.

The pressure of this Court’s business makes it necessary that it should accede to a request to vacate a hearing only when the interests of justice make it necessary to do so or in a situation where some other case can be readily substituted for the vacated hearing.  The latter exception does not apply here, and there is certainly no injustice to the applicant in requiring it to proceed with the appeal next week.

The second ground for the application is an even weaker ground.  It appears that in April 1999 an agreement was made between the appellant, Dovuro, and a company, Dovuro Seeds Pty Limited, under which Dovuro Seeds would provide technology to the appellant for a fee.  That fee was secured by a mortgage and charge.  There appears to be a suggestion – perhaps it is stronger than a suggestion – that the liquidator will seek eventually to set aside that agreement.  In an affidavit filed in this Court, the solicitor for the applicant to this summons said, in paragraph 18 of an affidavit of 4 March 2003, that on 24 March 2003, which must be a mistake for 24 February ‑ ‑ ‑

MR ROWE:   It is, your Honour.

HIS HONOUR:   ‑ ‑ ‑ he had been instructed by the liquidator to commence proceedings against Dovuro Seeds to have the deed of charge set aside as an uncommercial transaction.  Other evidence in that affidavit would suggest that the liquidator said that he would have to get the agreement set aside, “as it is just a sham”.  However, today Mr Rowe has handed to the Court a letter from the liquidator to his solicitor and a reply from the solicitor to the liquidator, the effect of which is that the liquidator denies that he gave instructions and states that, if he did, then insofar as his conversations have been misconstrued, they are withdrawn.  The solicitors for the applicant replied the following day in a letter vehemently denying that they had not been instructed.  It is a matter of no relevance to this application whether or not instructions were given. 

Mr Rowe, for the applicant, says that nevertheless the proceedings should be adjourned because, if it is adjourned, there is a chance that this appeal may be settled by the liquidator and that his client is in a no‑win situation.  As I pointed out in argument, it seems to me that that is a complete irrelevancy.  The appellant has an appeal before the Court.  It is entitled to have this Court determine whether or not it is under any liability to the respondent.  If it succeeds, the respondent is in no worse position than it ought to have been.  If the respondent succeeds, it is in no worse position than if the appeal had not been brought in the first place.

At an earlier stage of these proceedings the respondent sought security for costs in a specified amount.  That security has been given in that sum.  Accordingly, the respondent is protected in respect of the costs of the proceedings in this Court.  So far as I am concerned, there is no ground whatever for vacating the hearing date next week.

Accordingly, the summons to vacate the date is dismissed.  The summons must be dismissed with costs.  I certify for counsels’ attendance in chambers.

MR ROWE:   Your Honour, just one other matter.

HIS HONOUR:   Yes.

MR ROWE:   In relation to the filing of submissions, we, in fact, filed our submissions yesterday.

HIS HONOUR:   Yes, Mr Rowe.

MR ROWE:   But we would ask leave to file supplementary submissions and an additional list of authorities, if required.

HIS HONOUR:   Yes.

MR ROWE:   I am being led in this matter by Mr Barry and he has requested that we seek that leave.

HIS HONOUR:   Very well.  Now, I think 4.00 pm on Monday should be sufficient for your purposes.

MR ROWE:   Thank you, your Honour.

HIS HONOUR:   Mr Rayment, you can have no objection to that?

MR RAYMENT:   No, your Honour.

HIS HONOUR:   I direct that the respondents be given leave to file a supplementary submission and a supplementary list of authorities, provided it be done by 4.00 pm on Monday next and that a copy of the submission and those authorities be served on the appellant’s solicitors by 4.00 pm on Monday as well.

MR RAYMENT:   It occurs to me that we should put our submissions in reply subsequent to that, your Honour, perhaps, unless we do two replies.

HIS HONOUR:   There may never be any.

MR RAYMENT:   No.

HIS HONOUR:   There may never be any.  If there is anything that arises out of that, then – I will make a further order that if the appellant perceives any matter in the supplementary submissions which requires a further reply, it has leave to file a supplementary reply in relation only to those supplementary submissions by 4.00 pm on Tuesday of next week, a copy of the supplementary reply to be served on the respondent by that time as well.

Yes, anything further?

MR RAYMENT:   No, thank you.

HIS HONOUR:   Adjourn the Court.

AT 10.18 AM THE MATTER WAS CONCLUDED