Downview Pty Ltd v Fox & Ors; Leighton Contractors Pty Limited v Fox & Ors

[2008] HCATrans 391

[2008] HCATrans 391

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S160 of 2008

B e t w e e n -

DOWNVIEW PTY LTD

Applicant

and

BRIAN ALLAN FOX

First Respondent

LEIGHTON CONTRACTORS PTY LTD

Second Respondent

WARREN STEWART PTY LTD

Third Respondent

Office of the Registry
  Sydney  No S183 of 2008

B e t w e e n -

LEIGHTON CONTRACTORS PTY LIMITED

Applicant

and

BRIAN ALLAN FOX

First Respondent

DOWNVIEW PTY LIMITED

Second Respondent

WARREN STEWART PTY  LIMITED

Third Respondent

Applications for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 17 NOVEMBER 2008, AT 9.30 AM

Copyright in the High Court of Australia

__________________

MR R.G. GAMBI:   May it please the Court, I appear for the applicant in the first matter.  (instructed by Wotton & Kearney)

MR M.J. CRANITCH, SC:   May it please the Court, I appear for the first respondent.  (instructed by Walkom Lawyers)

MR W.S. REYNOLDS:   If the Court pleases, I appear for the applicant in the second matter and respondent in the first matter.  (instructed by Moray & Agnew)

GUMMOW J:   Yes, Mr Gambi.

MR GAMBI:   Thank you, your Honour.  On Friday afternoon Mr Maconachie did not have any instructions as per the Court’s indication concerning the condition of special leave.  We have those instructions now, your Honour, to pay Mr Fox’s costs irrespective of the outcome of the appeal and not to disturb the costs orders below.

GUMMOW J:   Very well.  That is the position of the other party as well?

MR REYNOLDS:   That is so, your Honour.

GUMMOW J:   A question arises as to the further involvement of the third respondent in each appeal, which is the Warren Stewart Pty Ltd company.  The evidence of service indicates it has been deregistered.  It occurs to Justice Heydon and myself it might be useful and saving of costs to dispense with any further requirement of service on the third respondent in each appeal of the appellate processes, subject to any further order.  So that seems sensible, does it?

MR GAMBI:   Yes, your Honour.

MR REYNOLDS:   From our point of view, that would be fine.

GUMMOW J:   All right.  There will be an order to that effect and there will be a grant of special leave in each appeal.  The appeals will be heard together and in each case the grant of special leave is conditioned upon the term that, in any event, the relevant appellant will pay the costs of the appeal of the first respondent and not seek to disturb any costs order in favour of the first respondent in the New South Wales Court of Appeal.  Anything else, gentlemen? 

MR GAMBI:   No, your Honour.

GUMMOW J:   The appeals, I think, will be a one-day case taken together, would they not?

MR GAMBI:   Yes, your Honour.

MR REYNOLDS:   Correct.

GUMMOW J:   Very well.  We will adjourn to Tuesday, 2 December 2008 at 10.15 am in Melbourne.

AT 9.33 AM THE MATTER WAS CONCLUDED