Dyer v Australian Securities and Investments Commission

[1999] HCATrans 390

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B35 of 1999

B e t w e e n -

GRAHAM ALFRED DYER

Plaintiff

and

AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION

First Defendant

NIALL FRANCIS COBURN

Second Defendant

Summons to strike out

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 18 NOVEMBER 1999, AT 10.15 AM

(Continued from 28/9/99)

Copyright in the High Court of Australia

MS E.M. O’REILLY, SC:   I appear with MR D.A. KELLY for the applicant/defendants.  (instructed by the Australian Securities & Investment Commission)

MR J.D. BATCH, SC:   May it please the Court, I appear for the plaintiff/respondent.  (instructed by Ian Galton)

HIS HONOUR:   Yes.

MS O’REILLY:   Orders are sought as per the outline delivered yesterday for the reasons in the outline.

HIS HONOUR:   Yes.  I think, Ms O’Reilly, the simplest thing may be if I hear from Mr Batch about what he has to say in answer to it.

MS O’REILLY:   Thank you, your Honour.

HIS HONOUR:   Yes.  Mr Batch.

MR BATCH:   Your Honour, the plaintiff/respondent, Mr Dyer, has no submissions in response to the application.

HIS HONOUR:   Yes.  That being so, Ms O’Reilly, what do you say I should do?  Do you say I should give you judgment?  What should happen?

MS O’REILLY:   It would probably be sufficient if you ordered that the action be struck out or, alternatively, that the endorsement on the writ be struck out.

HIS HONOUR:   If I strike out the endorsement then that will leave the action alive.  What exactly was it that you told the other side you wanted?

MS O’REILLY:   That the action be struck out, your Honour, but they are now, of course, here.  If you are minded to ‑ ‑ ‑

HIS HONOUR:   But why do I not strike it out, in effect, for want of prosecution?  They have been given an opportunity to replead; they did not take that opportunity; their statement of claim stands struck out; they are not moving for repleading.  Does that amount to them failing to prosecute their action?  If that is so, why should I not simply strike it out for want of prosecution with orders for costs in your favour?

MS O’REILLY:   That would be a convenient set of orders, your Honour.

HIS HONOUR:   Yes.  Mr Batch, you have told me you had no submissions.  Having heard what I have said to Ms O’Reilly, do you now seek to add anything or subtract anything?

MR BATCH:   No, your Honour, the same submissions; no contrary submissions to the proposed orders.

HIS HONOUR:   Yes, thank you, Mr Batch.

There will be orders that the action is struck out.  The plaintiff will pay the defendants’ costs of the action, including the costs reserved on 28 September 1999, and the costs of today.  I will certify for counsel.  Does either party seek to be heard about that form of orders?

MS O’REILLY:   No, thank you, your Honour.

MR BATCH:   No, your Honour.

HIS HONOUR:   Yes.  There will be orders in those terms.  I will adjourn now and resume at 10.45 with the Adelaide matter.

AT 10.19 AM THE MATTER WAS CONCLUDED