Dow Jones & Co Inc v Gutnick

[2001] HCATrans 392

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M99 of 2001

B e t w e e n -

DOW JONES & COMPANY, INC

Applicant

and

JOSEPH GUTNICK

Respondent

Application for expedition

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 18 OCTOBER 2001, AT 10.33 AM

Copyright in the High Court of Australia

MR R.M. GARRATT, QC:   If the Court please, I appear for the applicant.  (instructed by Gilbert & Tobin)

MR J.L. SHER, QC:   If your Honour pleases, I appear for the respondent.  (instructed by Schetzer Brott & Appel)

HIS HONOUR:   I have read the papers in the matter, of course, gentlemen.  As I understand it, the application for expedition is not opposed, it is joined in by both sides, is that right?

MR GARRATT:   That is so, your Honour.

HIS HONOUR:   The position is that it is likely that we could give you a date on Friday, 14 December in Sydney.  We would expect to be able to add you to the list on that day.  Does either party want to be heard about that proposal?

MR GARRATT:   Your Honour, we seek the matter to be heard as soon possible.  If that is the date the Court can offer, we accept it gratefully.

HIS HONOUR:   Yes.  Mr Sher?

MR SHER:   We were hoping to be heard in Melbourne, your Honour, but I take it there is no date this year in which the Court is sitting in Melbourne.

HIS HONOUR:   There is a motion list in Melbourne on 14 December but, for a number of reasons, it is likely that Sydney would be where you would have to be added into the list, I fear.

MR SHER:   We are in the hands of the Court.  Obviously, your Honour, we would prefer to avoid the expense and trouble of going to Sydney in the middle of December.

HIS HONOUR:   I understand that.  You make it sound as though the middle of December is more expensive than normal.

MR SHER:   Or at any time.  Let us be frank, or at any time.  But if we have to go to Sydney because that is where the Court can fit us in, then so be it, your Honour.

HIS HONOUR:   If we are going to do that, we would need to set a timetable for the remaining steps and I will show you mine if you show me yours, Mr Garratt.

MR GARRATT:   I would prefer to look at yours first, your Honour.  Mine has blanks in it, your Honour.

HIS HONOUR:   Sorry, blanks are not permitted in directions.  The applicant faxed an outline of argument last night.  I assume the hard copy will hit the file today and will be served today, is that right?

MR GARRATT:   That is so, your Honour.  Indeed, Mr Robertson, who would be doing this application, is indisposed and undergoing medical treatment.  He has been able to tailor the document down closer and I have a substitute version which I have given to my learned friend.  We are in a position to file that in Court today.

HIS HONOUR:   Yes.  It can be filed out of Court later so long as the other side has it.  Really, Mr Sher, I think it is you who suffers some abbreviation of time on this timetable, but what do you say about you putting on your response by 5 November?

MR SHER:   Your Honour, in normal circumstances it would not be a problem but, in fact, I have made arrangements to go overseas on Saturday and 5 November is the day I return.  I was going to ask your Honour whether it would be possible to make 5 November either the 8th or the 9th.  The 8th would be satisfactory.  If we are not going to be heard until 14 December, we could probably fit everything in, if your Honour gave us a few extra few days.

HIS HONOUR:   Yes, but the last date I want everything in by though is 29 November, so that we can get the books before the December sittings begin, if we can have the books before that weekend before the December sittings.

MR SHER:   If we could have until 8 November instead of the 5th, then at least I can settle our summary.

HIS HONOUR:   If we slipped then, say, reply over to 12 ‑ ‑ ‑

MR SHER:   I would have thought the index is not going to be a controversial matter at all.

HIS HONOUR:   No, and, indeed, the Deputy Registrar may well simply prepare the index and fix it in that way so we could take out minute 3 altogether and, as I say, books by 29 November is, from our point of view, the critical thing.

MR SHER:   Yes.  I am not suggesting any change to that date, your Honour.

HIS HONOUR:   Would that timetable work then from your end, Mr Sher, 8 November for you, 12 November for reply, books by 29 November?  That is less of your concern, I suppose.

MR SHER:   Yes, that would suit us admirably, your Honour.

HIS HONOUR:   Yes.  What about you, Mr Garratt, can you live with that timetable?

MR GARRATT:   We certainly can, your Honour.  The only point that I have to mention is that because Mr Robertson has been indisposed, he has not completed the list of authorities.  We did say, or he does say, at the end of the submission that 14 days is sought to submit a list of authorities.  I should say this, your Honour:  it is not a controversial list of authorities.  It is just as your Honour might imagine, that in the law of defamation in relation to publication there are many authorities which one would comprehensively refer to as to the circumstances in which publication is deemed to have occurred concerned people using a phone, a fax, a library and so on.

HIS HONOUR:   It is an application for leave, Mr Garratt.  It is not the hearing of the appeal, if you were to get leave.

MR GARRATT:   Yes, it is.  I appreciate that.  One gets nervous on this side of the Bench, your Honour.

HIS HONOUR:   It is not so long ago that I have forgotten that, Mr Garratt.  Well, I will not make any direction about lists of authorities, Mr Garratt.  If that comes to be some problem, then let us address it then.  If I were to make orders in the following form:

1.   On or before 4.00 pm 8 November 2001 respondent to file and serve summary of argument in answer to application for special leave to appeal;

2.   On or before 4.00 pm 12 November 2001 applicant to file and serve any summary of argument in reply;

3.   Subject to any further or other directions of a Justice or a Registrar, on or before 4.00 pm 29 November 2001 applicant to file requisite number of copies of application book;

4.   Order application for special leave to appeal be expedited;

5.   Costs of the application to be costs in the application for special leave; and

6.   Certify for counsel.

Does either side wish to be heard against those orders in that form?

MR SHER:   No, your Honour.

MR GARRATT:   No, your Honour.  There is one remaining matter, your Honour ‑ ‑ ‑

HIS HONOUR:   Yes, Mr Garratt.

MR GARRATT:   ‑ ‑ ‑ which does not relate to an order.  It is this:  your Honour, Justice Gillard in the Supreme Court has given directions with respect to the progress of the matter there.  Of his Honour’s own initiative on the last occasion his Honour has declared that if we file a defence we will not be submitting to the jurisdiction of the court.  Your Honour, our researches have indicated that there is no basis for his Honour being able to deem taking steps in the proceedings is not a submission to jurisdiction. 

We will be going back to his Honour, or at least to the judge in charge of the list, to have an adjournment, or at least a deferral of those orders until after the special leave application is heard.  It is conceivable that that may be refused.  We would think it unlikely, but if it is, we may need to come back to this Court to seek a stay.  Your Honour, I simply foreshadow that.

HIS HONOUR:   Okay.  I foreshadow the fact that I will be in Perth next week, Mr Garratt, and those are matters for the parties.

MR GARRATT:   Thank you, your Honour.

MR SHER:   I do not think my learned friend’s client has any real concerns, your Honour, because there is a decision of Justice Hedigan which I will give him which indicates that if he wins, the appearance will be, in effect, set aside, so it will all fall over and we do not understand this concern, quite frankly.

HIS HONOUR:   Well, those are matters that either Mr Justice Gillard or someone else can have the joy of listening to, at least initially.

MR SHER:   It just occurred to me, your Honour does not think it appropriate to actually fix it for 14 December?

HIS HONOUR:   No, but I have spoken with the Chief Justice and that is our present intention.

MR SHER:   If there is any chance of the Chief Justice fixing it for the 14th in Melbourne, we would not be at all distressed, your Honour.

HIS HONOUR:   There is nothing I can say that would usefully add to that, Mr Sher.  There will be orders in the terms I have described.  Thank you.

AT 10.44 AM THE MATTER WAS CONCLUDED