Firona Pty Ltd, Peter Theodore, Beverley Lorraine Theodore and Cohen and Cohen (A Partnership) and Hersfield Holdings Pty Ltd, Hersfield Developments Corporation Pty Ltd and George Herscu

C.A .

JUDGMENT No. ,.

.aa

2 Y q a

THE FEDERAL COURT O F AUSTRALIA

G e n e r a l D i v i s i o n

FIRONA PTY LTD, PETER THEODORE,

BEVERLEY LORRAIEETHEODORE a r g

COHEN AND COHEN	( A PARTNERSHIP)
and

HERSFIELD HOLDINGS PTY LTD,

HERSFIELD DEVELOPMENTS CORPORATION

PTY LTD and GEORGE HERSCU

C . A.

SWEENEY J

NORTHROP J

KEELY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY,

2 JANUARY 1 9 8 1 , AT 2 . 1 8 PM

C o p y r i g h t

i n t h e

C o m m o n w e a l t h

G o v e r n m e n t

f i r c o	2 . 2 . 8 1
tl jo

DR C-. PANNAM: on behalf of the respondents to the appeal.

May it please the court: - MR JOLSON and I appear

They

are the parties who seek the relief sought on the

notice of motion dated 22 December 1980.

SWEENEY J: Yes, Dr Pannam.

MR N. MOSHINSKY: If it please the court: I appear on behalf

of the parties who are the respondents to the notice

of motion and who are the appellants in this particular

action.

SWEENEY J:

Yes, Mr Moshinsky.

Dr Pannam?

DR PANNAM: Your Honours, the matter comes before the court on

a motion issued by the respondentspursuant to the

provisions of Order 52, Rule 18 of the rules of this

court and the application is made at this time because

the rule has a sting in its

tail, which is sub-rule ( 3 ) ,

which is that if the respondent does not move to have

appeal dismissed as incompetent then there is some hazard

as to costs if that . . . . . should be successful at

the hearing of the appeal as imposed by that sub-rule of

Order 52, Rule 18.

The order in respect of which the appeal was

brought was an order that was made by The Honourable

Mr Justice Smithers on 4 December-1980; and I first take

the court to the order that was made before taking your

Honours to the background circumstances to its making.

Do your Honours each have copies of that?

Perhaps before going to the order it is efficient

to briefly describe something of the proceedings.

In the application- of-*_applicants Hersfield Holdings

Pty Ltd, Hersfield Developments Corporation Pty Ltd and

George Herscu sought certain injunctionary relief against

the various respondents in relation to the use that was

to be made of certain documents that were obtained on

discovery - or, as the applicants would have it, the

misuse of those documents.

Without - - -

NORTHROP J:

When you say applicants there, Dr Pannam, to whom

do you refer?

DR PANNAM: I was referring to Hersfield.

Briefly what had

happened was this:

there were two actions, as it were,

pending in this court.

One was a case which I call

Firona against Hersfield, which was a landlord and tenant case, the persons associated with that company being the tenants who were making complaints about the circi~mstances in which a lease was entered into, the lease being granted by Hersfield - and I shall simply call it that.

During the hearing of that action and before

judgment in that action had been delivered, it was

discovered by the legal advisers who appeared on behalf

of Firona and the other applicants in that proceeding

firco 2.2.81	DR PANNAM
tl 2 jo

that was then before the court- and in which judgment went along to the discovery in that other action and were given information about or copies of - nothi-ng turns on it for present purposes - documentation in that other action.

had not been delivered, it was discovered that in

another proceeding in this court in which Hersfield

was concerned there had been certain documents

discovered by Hersfield in that proceeding, and they

had been made privy to that information by the legal

advisers to the applicant in the other proceeding.

When they looked at it, or when they ascertained

the nature of the information that the documents

contained, they desired to re-open their own case

essentially upon the basis that the document should

have been discovered in their action, so you had

Hersfield as a respondent in two proceedings; in one

it is alleged that it did not discover documents; in

the other it said that it did and the complaint: made by

my learned friend and his clients, those instructing him,

is that the discovery that Hersfield made in the other

action should have been made in theirs, and they then

threatened to apply to Mr Justice Smithers, who was the

primary judge, to re-open the Firona case on the basis

that there was material that had not been discovered

which should have been discovered in that action.

SWEENEY J:

What is the number of that case?

DR PANNAM: The number of that case is VG 132 of 1980.

The

Firona case itself is No VG 153 of 1980, which is the appeal which is presently - - -

NORTHROP J:

This makes it confusing looking at the order.

In VG 153 of 1980 it has got Hersfield Holdings as applicant; is that correct?

DR PANNAM: No.

That was a completely fresh application that

was made by Hersfield, that was a completely new

proceeding.

The two proceedings which started the

problems were these: VG 58 and VG 59 of 1980 were were applicants.

proceedings in which Firona and two Theodores -

firco 2.2.81	DR PANNAM
tl 3 jo

-".,__

I ascribe-\to them a s t e n a n t s .

They had a complaint

a g a i n s t

Hers f i e ld

Holdings

Limited

and

ce r t a in

o t h e r

i n d i v i d u a l s

and

companies.

The

number

t h a t proceedings w a s VH No

58 and 59, and they w e r e

heard

t o g e t h e r

M r tJus-t ice Smithers ,.

SWEENEY J:

What i s t h e s t a t e of

those - - -

DR PANNAM:

They were resolved by judgment t h i s morning when h i s Honour

de l ive red

r e s e r v e judgment

i n which

dismissed t h e t e n a n t s ,

Firona and

Theordore 's

claim.

That, w a s a judgment

t h a t was

d e l i v e r e d i n

t h i s cour t t h i s morning a t 10.30,

a t 10.15.

But

p r i o r t o t h e d e l i v e r y of

t h a t judgment,

bu t

a f t e r t h e evidence had been given and argument had

been

completed

i n it, t h e r e was

an a p p l i c a t i o n t o

M r J u s t i c e Smithers

f o r l eave

t o reopen

t h e a p p l i c a n t s

case and my

learned f r i e n d says it w a s t h e day a f t e r ;

nothing t u r n s on it, it w a s a f t e r evidence had been

l e d and argument had taken p lace .

NORTHROP

t a k e it t h i s w a s n o t i c e of

mot:ion,

w a s it?

DR PANWAM:

No,

t h i s was infkm&l.y on a Fr iday af ternoon.

t h i n k my

learned

f r i e n d

simply

i n d i c a t e d ,

o r had

h i s

i n s t r u c t i n g

s o l i c i t o r s

i n d i c a t e

t o a l l t h o s e

persons who were concer:necl

with t h e Firona c a s e

t h a t an

a p p l i c a t i o n waultl

be made

t h s t a f te rnoon

.to

h i s Honour	M r J u s t i c e Smithers,	and	indeed t h a t w a s
done.

NORTHROP

J :

There

i s o f t e n confusion a r i s i n g from t h e use

t h e word

a p p l i c a t i o n and

a p p l i c a n t s ,

because

a s

I understand t h e r u l e s ,	t h a t should have Seen by
n o t i c e of motion - - -

PANNAM:

doubt,

and

no p o i n t t u r n s f mm thj-S, it w a s

ma t t e r of

g r e a t urgency because my

learned f r i e n d

was

i n a

p o s i t i o n where

he ana h i s i n s t r u c t i n g

s o l i c i t o r s be l ieved

t h a t they had

j u s t

discovered a

m a t t e r of

v i t a l importance

t o t h e i r case

t h a t had

come

t o t h e i r a t t e n t i o n ,

and

before t h e judge

proceeded

~ s i t h

t h e p repara t ion of

h i s judgment,

they wanted t o

have

l eave t o reopen

t h e i r c a s e i n a r d e r t o p u t new

evidence

and argument before t h e c o u r t ,

s o t h a t it

was done informally.	So t h a t i s a c t i o n No	58 and 59
of 1980.

SWEENEY J:

not. h e s i t a t e tzo

szv2.kt has go t nothing t o do

wi th

it, but

d i d t h a t t u r n

t h i s m a t e r i a l

t h a t had

been

discove:red thrcugk: t h e discovery

i n t h e o t h e r

a c t i o n ?

f i r c o 2.2.81

T2 I b

L---~"

- " m -

PANNAM:

Y e s ,

and

t h e o t h e r a c t i o n w a s an a c t i o n i r r which

t h e o t h e r a c t i o n w a s an a c t i o n No

X32

1980 i n

which

H e r s f i e l d again w a s t h e respondent,

z.nd

t h e

a p p l i c a n t was

a man

named

P a v l i d i s ,

and

t h e company

c a l l e d Deer

Park Discounts P ty Ltd.

Again

Pavl.idi S

w a s t h e i.ndividua1,

j u s t as Theordore 's were

wi th

Firona,

t h e

company.

P a v l i d i s

t h e

i n d i v i d u a l

and

D e e r Park Discounts

t h e company,

they w e r e t h e t e n a n t s ,

and again t h e r e w a s an a c t i o n i n which

comp1ain.t

was made is VG No 132 of 1980.

a g a i n s t H e r s f i e l d ,

t h e landlord .

So t h a t

It w a s i n t h e course of

t h a t proceeding,

132 of

1980 t h a t an a f f i d a v i t of

documents was

prepared

and

v e r i f i e d i n accordance with

t h e r u l e s ,

and d iscovery was

obta ined by

inspec t ion a t t h e o f f i c e

H e r s f i e l d ' s

s o l i c i t o r s ,

and

i n t h a t proceeding

t h e r e w a s

very

e l a b o r a t e

a f f i d a v i t

and

very

e l a b o r a t e discovery

r e l e v a n t documentation

i n t h a t proceeding.

Now

when

discovery took p l a c e ,

o r inspec t ion

pursuant t o t h e discovery of

t h e a f f i d a v i t a s

v e r i f i e d took p lace ,

what happened was was

they turned

a t t h e o f f i c e of

H e r s f i e l d ' s s o l i c i t o r s i n t h a t

proceeding, M r

Moshinsky and one s f t h e members of

t h e f i r m t h a t

i n s t r u c t e d

him,

a t t h e

i n v i t a t i o n of

t h e s o l i c i t o r s who

were

handling

t h e t e n a n t s complaint

i n t h a t a c t i o n - and it was

i n those circumst,ances t.hat,

they obta ined information about documents t h a t they

thought should have been

discovered i n t h e i r a c t i o n ,

s o they then went

back t o M r J u s t i c e Smithers on

t h e

Fr iday af te rnoon a s a mat ter of

urgency and s a i d -

---

look,

documents have come

t o our a t t e n t i o n t h a t

r e q u i r e you

t o reopen

t h e case because our

content ion

is discovery was

d e f e c t i v e because of

t h e documents

t h a t have now

come

t o our a t t e n t i o n ,

t h a t w e say should

have been discovered, t h a t bear upon cross-examination as t o c r e d i t , a t l e a s t ; and maybe a s t o an i s s u e , and

w e want

t o reopen t h e case.

f i r c o	2 .2 .81
T2 2 5

Nu,w,

it w a s i n those circumstances t h a t a c t i o n

number -VG153 of 1980 was commenced a s a completely

s e p a r a t e and d i s t i n c t proceeding.

And

a c t i o n number

VG153

1980

i n which

H e r s f i e l d ,

t h e two

H e r s f i e l d

companies

and

Herscu ta re the a p p l i c a n t s

and

Firona

and t h e Theodores and Deer Park and t h e P a v l i d i s

and

t h e s o l i c i t o r s f o r t h e P a v l i d i s a r e respondents

t hey a l l 8 i t now i n t o p l a c e I

hope

because your

Honours w i l l now

see t h a t Hers f i e ld

i s t h e complainant

and it F i rona and t h e Theodores,

is making

complaint

a g a i n s t

t h e a p p l i c a n t s ,

i n VG58 and

a g a i n s t

Deer

Park Discounts and

t h e P a v l i d i s who

a r e t h e

a p p l i c a n t s

i n VG

132

and

a l s o a g a i n s t t h e l a s t

t h r e e respondents ,

who

were

t h e s o l i c i t o r s

a c t i n g

on behalf No VG132 of 1980.

Deer

Park

and t h e P a v l i d i s

i n a p p l i c a t i o n

Now, t a k i n g your Honours

t h e b a s i s of

t h e i r complaint and without

t o what

seems

t o U s - * t o be_-unnecessary

f o r t h e moment

t o t h e p leadings in

t h a t

a c t i o n

was H e r s f i e l d was

saying t h a t IOU

cannot make 'use of

documents

discovered i n another a c t i o n i n t h i s way.

I n o t h e r words,

t h a t where

t h e c o u r t compels

i t s d i r e c t i o n

under

i ts r u l e s

t h a t you

d iscover

documents

f o r t h e purpose

l i t i g a t i o n t h e s o l i c i t o r s

f o r t h e opposing

p a r t y t o ob ta in

access t o those

documents cannot,

a s it were,

i n v i t e my

l ea rned

f r i e n d and

h i s

i n s t r u c t i n g

s o l i c i t o r around

and

say ,

look what w e have discovered i n t h i s &her

a c t i o n ,

would be very u s e f u l t o you,

here a r e some cop ies

of it o r he re is some information about it, go f o r

your l i f e , it might be va luable .

Now, made i n VG - - -

t h a t was

t h e whole b a s i s of

t h e complaint t h a t w a s

NORTHROP J:

That information cannot be made use of i n

o t h e r proceedings	o r t h a t it should not be done a t
a l l ?

DR PANNAM:

Yes. purpose than f o r t h e purpose of

It should not be used f o r any o t h e r

t h e proper conduct

t h e l i t i g a t i o n i n which

it w a s discovered.

NORTHROP

Because of evidence gained might b e . . . . on t h e one hand

t h e r e a r e two

s e p a r a t e i s s u e s

would

have

thought

a r i s i n g here.

One

i s t h e a d m i s s i b i l i t y

and

secondly t h e o t h e r i s s u e is whether

t h i s was

gained

l awfu l ly o r unlawful ly.

PANNAM:

Other.

Well,

yes ,

t h e r e a r e those two

i s s u e s

al though

a u t h o r i t y t h a t M r J u s t i c e

Smithers

was

d i r e c t e d

i n t e n d e d

t o encapsula te

them

because

i n England t h e r e had been

two very r e c e n t and

r a t h e r extreme

s ta tements of

t h e n a t u r e of

t h e -

f i r c o 2.2.81	DR PANNAM
t 3 1 s m

/ _

--.- .""

- _.

_-.--

forceable , . I. should say,

r a t h e r than extreme

s ta tements of

t h e n a t u r e of

t h e use t h a t could be

made of discovered documents and, indeed, in t h e

l a s t c

t h a t was

r e f e r r e d

t o i n t h e c o u r t

appeal ,

t h e c o u r t of

appeal went

s o f a r a s t o

s t r i k e o u t a

defamation

a c t i o n t h a t had

been

commenced on t h e b a s i s of

a document t h a t had been

discovered i n another a c t i o n .

So t h a t t h e two

p o i n t s

a r e d i s t i n c t b u t

they have

been

encapsulated

and t h e cour t of

appeal has re fused t o a l low them

t o be made use of

on grounds of

p u b l i c po l i cy .

NORTHROP

And what was

t h e r e l i e f

sought i n a c t i o n VG153?

PANNAM:

In junc t ions i n e f f e c t ,

o r perhaps

should

say - - -

NORTHROP J :

The substance of them - - -

DR PANNAM:

Yes, t h e substance was - I w i l l read t h e - -- -:

injunction

a g a i n s t a l l of

t h e

respondents i n e f f e c t . . . . . . . . .

, t hey were

discovered,

. -..----:

' ..

%-.,"*

--..

- 1 . 7 .

f i r c o

2 . 2 . 8 1

DR PANNAM

t 3 2 sm

Now,

what happened on

t h e h e a r i n g of

t h a t

a p p l i c a t i o n

f o r an

i n j u n c t i o n w a s

q u i t e

e x t r a -

o r d i n a r y

because

w a s

s h o r t s e rved

t h e n o t i c e

of motion and a l l of

seek ing t h e r e l i e f

w a s s h o r t s e r v e d -

t h e p a r t i e s ; appeared -

some a t once

and o t h e r s

j u s t a f t e r lunch

- b u t t hey

a l l

e v e n t u a l l y

appeared

and

beha l f

t h e H e r s f i e l d

companies and M r Herscu my

l e a r n e d j u n i o r

and I were

hea rd t o add res s M r J u s t i c e Smithers

t o why

i n j u n c t i o n

shou ld b e

g r a n t e d

and

j u s t

p r i o r

t o t.he

luncheon adjournment on t h a t morning,

l e a r n e d

f r i e n d commenced h i s argument and h e immediately -

and h e w i l l c o r r e c t m e

i f I

s a y any th ing t h a t i s

i n c o r r e c t -

g o t i n t o a

b i t of

h o t w a t e r w i t h ..-

M r J u s t i c e Smi thers ,

n o t because

h i s argument w a s

n o t p e r s u a s i v e

a s h i s arguments

always

a r e -

b u t

t hey

d i d n o t

f a l l upon

r e c e p t i v e

e a r s .

M r J u s t i c e

Smithers

appeared t o be a g a i n s t him b u t no more

t h a n

t h a t .

H i s Honour

was

v o i c i n g

op in ions

d u r i n g

t h e course

l e a r n e d f r i e n d ' s argument

a f t e r

I had s a t down

and j u s t b e f o r e t h e luncheon adjournment

l e a r n e d f r i e n d s a i d t h a t ,

w e l l ,

h e would have

t o

c o n s i d e r h i s p o s i t i o n

over

luncht ime

and

a f t e r lunch

he would r e t u r n

and t e l l h i s Honour,

M r J u s t i c e

Smi thers ,

what

h i s a t t i t u d e then w a s .

Perhaps

i n s t e a d

e n c a p s u l a t i n g

and

perhaps

d i s t o r t i n g

can

t a k e t h e c o u r t t o t h e material -

t h e t r a n s c r i p t -

a s t o what a f t e r lunch ,

happened when

l e a r n e d

f r i e n d r e t u r n e d

which i s t h e background

c i rcumstance

i n which t h e o r d e r of

4 December w a s made.

your

Honours a l l each have cop ie s?

SWEENEY

What page a r e you r e f e r r i n g t o ?

DR PANNAM:

I t i s a t page 618,

That would t a k e your Honours

back f i r s t of

a l l t o page 616,

SWEENEY

J u s t s t o p p i n g t h e r e on

t h a t t r a n s c r i p t f o r a

moment.

That t r a n s c r i p t i s headed VG

58 and VG

59 of

1980.

DR PANNAM: SWEENEY J:

Y e s .

It s t a r t s o f f a t page 594.

W e have t h a t day ' S

t r a n s c r i p t ;

and w e a l s o have

an e a r l i e r d a y ' s

t r a n s c r i p t -

f o r 3

Decembers imi la r lyheaded

which

s t a r t s o f f a t 582.

How

does t h e - - -

DR PANNAM:

I t happens i n t h i s way. it w a s a F r iday i n f a c t it w a s a Wednesday,

. .

s h o r t r e p o r t - when

l e a r n e d f r i e n d made

h i s a p p l i c a t i o n

, . . when

say

t h e 3rd -

what happened was

t h a t my

l e a r n e d f r i e n d made

h i s

a p p l i c a t i o n t o re-open

h i s case

s o t h a t t h e f i r s t

t r a n s c r i p t beginning

a t page

582

has

g o t a

c o r r e c t

heading:	b u t when	one	comes	t o t h e	second t r a n s c r i p t
i t - - -

f i r c o 2.2.81	8	DR	PANNAM
t 4 l m

SWEENEY

'what I 581 pages of

a m t r y i n g t o f i n d o u t i s has t h e r e been

t r a n s c r i p t i n VG 58 and VG

59?

DR PANNAM:

I have n o t r e a d it b u t I would assume t h e r e has

been

something l i k e i t , yes .

I t w a s a long w i t n e s s -

- -

NORTHROPJ:

Y e s . t a l k i n g about

I a m s t i l l confused,

I thought you w e r e

t h e motion

f o r an

i n t e r l o c u t o r y

i n j u n c t i o n VG153

1980.

DR PANNAM:

Y e s ,

am,

b u t t h e background of

g e t t i n g t h a t

i n t e r l o c u t o r y

i n j u n c t i o n

was

l e a r n e d

f r i e n d

i n d i c a t e d t h a t he

wanted t o be hea rd t o re-open

and

w e came a long on t h a t and wanted t o be heard ,

b u t

h i s Honour s a i d , w e l l ,

look,

it would be much

b e t t e r

if you g o t away and commenced your own proceeding

and a t t h e end of t h e day which ends a t page 592-593 - - -

NORTHROP

Was Because it is s a i d t o be Wednesday 3 December.

t h a t a Wednesday o r n o t ,

I am n o t t o o s u r e ?

The

n e x t t r a n s c r i p t i s Monday,

December.

DR PANNAM:

I do n o t r e a l l y - - -

NORTHROP 3:

Thursday, yes .

DR PANNAM:

But it a l l depends

- t h a t f i r s t t r a n s c r i p t was

i s

p r o p e r l y headed

t r a n s c r i p t of

t h e proceedings when

l e a r n e d

f r i e n d

a t tempted

t o re-open

h i s

c a s e

i n t h e

F i rona

a c t i o n and my

l e a r n e d j u n i o r

and myself

came

a long on beha l f

H e r s f i e l d t o oppose

t h a t -

a t t h a t

s t a g e w e

r e p r e s e n t i n g

t h e

H e r s f i e l d

i n t e r e s t

i n

t h e

o t h e r a c t i o n

and h i s Honour

M r J u s t i c e

Smi thers s a i d ,

w e l l ,

l ook ,

i n s t e a d of

m e

a rgu ing abou t

o r h e a r i n g

argument

about your s t a n d i n g t o be

h e r e ,

you

go away

and have some o t h e r proceedings

Sssued,

and t h a t i s what

w e

d i d .

SWEENEY

W e l l , o t h e r p roceedings

s t r i c t l y speaking,

when

you

s t a r t e d t h o s e

t hey

should have

s t a r t e d o f f

w i t h

t r a n s c r i p t page

should they n o t ?

PANNAM:

But t h e y do no t .

They

s t a r t o f f

a t page

597 w i t h

a	p rope r heading.

SWEENEY

W e l l ,

t r a n s c r i p t 597

i s r e a l l y t h e f i r s t page

r e l a t i n g t o VG

58 and 59?

DR PANNAM:

No,

I am

s o r r y , your Honour.

I t i s t h e f i r s t page

r e l a t i n g t o VG

153 of

1980 which i s our a c t i o n i n which

w e

seek

t h e

i n j u n c t i o n .

SWEENEY J: I see. Thank you.

f i r c o 2.2.81

PANNAM

t 4 2 m

(Continued on page 9a)

DR PANNAM:

So i f one goes t o page 5 9 7 one would see t h e

s t a r t of

t h e argument on

t h e r u l i n g when

w e appeared

i n t h e new

a c t i o n and w e a d d r e s s e d argument

t o h i s

Honour

t o why

i n j u n c t i o n

s h o u l d b e

g r a n t e d .

f i r c o

2 . 2 . 8 1

DR PANNAM

t 4 3 m

Continued on page 10

DR PANNAM:

So that then one goes over to the end of that

warning at page 616, just before the luncheon adjournment,

one sees there after, what I might describe without

disrespect-to

his Honour over the preceding three or

four pages, his Honour expressed his views at some length

about these matters, and my learned friend was not,

able

to say very much, but at the top of page 616 his Honour,

after expressing his view, and again I am saying there

was some difficulty with my learned friend's position,

tuwards the top of the page said:

Very well where you get your appeal

. . . . . . . . . . . .	next March
or April,

and my learned friend said:

We do not want judgment held up

. . . . . . . . . . . . .	to another
judge .

And I should say that the reason for making the what was in the material and the whole point of the

application to the other judge was that if my learned

friend was to make his application at all to Mr Justice

application would have been lost.	That was the reason
for reference to another judge.

Then his Honour said:

Very well.

And I interrupted not very relevantly.	At a quarter
past two at page 618 my learned friend - - -

KEELY J:

Would not a lot depend on - were you not at that

stage replying to an argument which Mr Moshinsky had

put admittedly as you say without, it would appear, a

tremendous amount of persuasive effect upon his Honour?

DR PANNAM:

The reason why I say not relevantly, my learned friend

said during the course of his argument that Hersfield had been guilty of a lot of unlawful activities and all sorts of things and the two points of putting in a reply was

that at best my learned friend has said the material was

relevant cross-examination as to credit and secondly it was

discoverable within the rules of any event. It is not

very relevant for present purposes but what is relevant

is what my learned friend did after lunch.

KEELY J:

Before you go to that - I am sorry, Mr Pannam - but

the words you read a moment ago:

I would ask your Honour to delay judgment

until the court has resumed at 2.15

firco 2.2.81	10	DR PANNAM
t5 1 js

rather convey to my mind uninstructed as yet by counsel that the point had been reached at which his Honour was apparently about-to give judgment having heard counsel

for both parties, and you^ opponent asked his Honour

to delay judgment until 2.15 to enable Mr Moshinsky to

consider some other avenue that he thought was open to

him. Is that right?

DR PANNAM: Yes.

KEELY J:

Yes, all right.

DR PANNAM:

Well to some other avenue, being an application

to another judge or generally the attitude that he

would take towards his Honour delivering a judgment

and coercive orders being made against his client.

One does not know.	He just wanted to reserve generally
his position.

NORTHROP J:

One gets the impression that the argument

had been completed?

DR PANNAM:

Yes, and the way things were going I do not think

I misrepresent the trend of the proceedings before his

Honour as appears from the transcript, it looked as if

his Honour was going to deliver a judgment and then

make orderS,coercive orders by way of way of injunctions

against my-learned friend's clients.

There is no

reason to contend to the contrary, and a11 of the

indications in the transcript indeed indicate that

that was in his Honour's mind.

My learned friend

said, do not do it now, think about it, and I will

come back at 2.15.

firco 2.2.81	DR PANNAM
t5 2 js

NORTHROP J:

EGen the extent of your reply having been concluded

be£	ore lunch?

DR PANNAM:

Yes.

At page 618 my learned friend returned and

at the top of page 618 he said:

I think I should indicate my attitude

. . . . . . . . . . .	further in another
court.

And his Honour coming back after lunch no doubt was ready to deliver a judgment said:

Well naturally yes, I appreciate

. . . . . . . . . . . . current thing.

Mr Merkel intervened.

NORTHROP J:

Who did he appear for at that stage?

DR PANNAM:

Mr Merkel appeared for the Hersfield companies in

the Firona action, so it was in his interests to be

along - - -

NORTHROP J:

Similar to your interests?

DR PANNAM:

Yes, and I can take your Honours along, except

I think, Mr Merkel, his Honour, Mr Merkel, his Honour,

and then it appears I said something, that appears to

be entirely incorrect, that seems to be Mr Merkel saying

it does not affect me because that was the profile he

was taking up, rather an attitude of disinterest in the

proceedings, so that that is not my interpolakion, that

was Mr Merkells interpolation.

His Honour said:

I knew you would say that.

Then Mr Liddell appears on behalf of the Pavlidis and the solicitors for Pavlidis individuals and for their company, Deer Park discounts, and he indicated that he

would be prepared on behalf of his clients to give an

undertaking to the court, and that goes over to page

619 and at page 619 towards the bottom of the page

I replied by saying that if they gave the undertaking in

terms of paragraph l(b) of the application that would

satisfy us, and at the bottom of the page:

So far as the submission has been made

. . . . . . . . . . . That is our attitude.

That point being the relief that was sought in the

motion before the court for an injunction was in absolute

terms and it was apprehended that all my learned friend

was saying was that they would not use it for the purpose

of the Firona action.	Mr Moshinsky was invited to
address his Honour:

firco 2.2.81	12	DR PANNAM
t6 1 js

I f

learned

f r i e n d seeks

t h e

i n j u n c t i o n

. . . . . . . . . .

opening of t h e case -

presumably t h e re-opening

t h e case . ,

H i s Honour:

The only purpose you have eve r wanted t h i s f o r . . . . . . . . . . . about it.

M r Moshinsky:

Not	a t a l l .

H i s Honour:

You	would be q u i t e happy i n t h e circumstances

f o r

a n y p u r p o s e .

. . . . . . . . . . .

M r Moshinsky:

I would be very happy t o do t h a t

. . . . . . . . . . . .	a	lawful
purpose.

H i s Honour:

I f I t a k e t h e view even t o use it f o r

. . . . . . . . . .	b o t t o m o f t h e w h o l e
a f f a i r .

learned W e have no t done anything except

f r i e n d :

. . . . . . . . . .

make

a p p l i c a t i o n .

H i s Honour:

That

t h e o t h e r

case .

M r Moshinsky:

W e have n o t made

any use of

t h e m a t e r i a l .

H i s Honour:

I n t h i s case you were wrong

. . . . . . . . . .	on appeal no t t o
use it.

M r Moshinsky:

I do g ive t h a t undertaking.

f i r c o	2.2.81	13	DR	PANNAM
t 6 2 js

NORTHROP J:

Was that an appeal from the judgment about to be

delivered or reserved or not?

DR PANNAM: Well, it would appear so,

NORTHROP J: Not limited to an appeal from the interlocutory

injunction being sought in 153 of 1980?

DR PANNAM:

Well, we really do not know but we are happy but it is difficult to distil meaning from this part of the transcript and Mr Moshinsky gave the undertaking and then - - - to argue the present motion on the basis that

there was reference being made to some appeal in

the particular proceeding that was then before his

KEELY- J :

Correct me if I am wrong. I'understand from

reading this that that undertaking was limited

to uses other than in matters 58 and 59 of 1980?

DR PANNAM: Yes. I am sorry, it was limited to not using

ai_(VG 58 and 59 on the basis of my learned friend's

statement which his Honour accepted and we were

not concerned to challenge which was that they had

no other purpose in mind.

In other words, the only

live issue was the use that could be made of it in not use it in that application then all the rest was entirely hypothetical because at that stage there was no suggestion that they would use it in any other way. So that is the way the matter came up.

Now then there was an argument about costs which I will not take the court to and the proceeding tha.t

afternoon petered out at page 624 with the suggestion

to his Honour that the parties might put their heads

together and prepare an order which would be initialled

and would be forwarded to his Honour for signature and

that was done, and that brings me to the exhibit to the

affidavit in support of the present motion.

NORTHROP J:

Before you go on, is the order itself in the form

of what?

The court orders that one undertaking has been

given.

DR PANNAM:

The point we immediately identify is there is only

one order that has been made by the court effectively

and that is an order in paragraph 3 that the applicant's

costs of the application be paid by the first, second,

third and fourth named respondents.

No other coercive

order or any order at all was made. My learned friend

volunteered as did Mr Liddell on behalf of the other

respondents volunteer an undertaking that was the price

of the court not making a coercive order against them

for whatever reason they saw to be an advantage in that

court.

firco 2.2.81	14	DR PANNAM
t6 3 js

So that the only order that was made by

Mr Justice Smithers is an order as to costs.

SWEENEY J:

Except that paragraph 4 says the parties have

liberty to apply upon notice to the others.

DR PANNAM: Oh, a reservation of liberty to apply, yes.

SWEENEY J:

His Hnour was reciting the two undertakings, making

an order as to costs, then reserving liberty to apply.

Sothat for your part, if you wanted to proceed further,

you had the door opened for you and if Mr Moshinsky

had wanted ot do so he had the same opportunity.

DR PANNAM: Except the notional liberty to apply is a very

slippery one in the sense that although it is a provision that is frequently made in orders the reservation of liberty to parties to apply does not mean

that the court reserves a general right to parties to come along to interfere with orders that have already been made.

SWEENEY J:

They cannot interfere with them but they might be

heard as to them, might they not?

DR PANNAM:

They may but they have not as yet, so it is an

entirely moot point at the moment.

SWEENEY S: But I was only dealing with your point that the

judgment simply recited the undertakings and the order

for costs.

DR PANNAM: Yes, your Honour is perfectly correct.

It is the

substantive part of the order.

It was simply imposing

a burden on the other side, an order to pay costs on

my learned friend's clients.

SWEENEY 5 :

If we were to look at the transcript itself to see

what happened, is there any evidence in the transcript

as to what did happen as to the note upon which t.he

proceedings closed?

DR PANNAM: When I said they picked it out, I did not read the end, because what happened was that I then sought. an order against Mr Liddell's clients for costs and his Honour was not happy with that; then in the alternative

sought an order against my learned friend's clients for

costs and was successful in that.

Can I take your

Honours to page 623, which will show his Honour's last

substantial remark in that application?

His Honour in

the first paragraph went through some undertakings so

far as Mr Liddell was concerned then, in the second

paragraph:

So far as the first four respondent are concerned . . . . . . . . . .and that there be liberty to apply.

firco 2.2.81	15	DR PANNAM
t7 1 jo

And then: .

Your Honour, could I just raise one question . . . . . . . . . .use those documents.

Can I summarize the last page briefly by saying

his Honour was invited to accede to the suggestion

that the parties prepare a draft, initial it, and submit

it to his Honour for signature, and that was done.

NORTHROP J:

And the present appeal is from the order dated

4 December 1980?

DR PANNAM:

Yes, and the important point - the only additional

fact that I would refer to before coming to the objection to competency is that if your Honours look at the exhibit to the affidavit of Andrew Henry Joseph, sworn on

15 December 1980, your Honours will see there is produced

. . . . . . paragraph 4 and there is the one exhi-bit

which is the document which ultimately was put before the

learned judge and became his order, and that document

contains the initials of all counsel concerned. So that

the order that was made was made after all counsel had

had an opportunity to consider the matter and the order

that was made on 4 December contained those two provisions

as to costs and the reservation of liberty apply upon

certain undertakings being given.

NORTHROP J:

Interrupting again, strictly speaking the form of the

order is not correct, is it, because normally the court

does not make any undertakings.	The undertakings being
given, the court makes orders.

DR PANNAM: Yes, but I think that is, if I may say so with respect,

a form of the order.

It has got:

The court orders that upon

Mr Moshinsky - - -

SWEENEY J:

I think what my brother is saying is that one would

expect it perhaps in other forms to have had:

upon

Mr So-and-so undertaking such-and-such and upon

Mr X undertaking so-and-so, the court doth order.

DR PANNAM: Yes, indeed, your Honour.

NORTHROP J: And there is nothing here adjourning the further

hearing of the motion?

DR PANNAM: No, there is no adjournment of the further hearing.

Apart from the reservation of liberty to apply upon notice, it purports to be an order as to the c0st.s of the application and it leaves the status of the action and of the motion otherwise, as it were, in limbo.

KEELY J :

But, Dr Pannam, that does not seem to accord with

what his Honour said in transcript, does it?

His Honour

firco 2.2.81	16	DR PANNAM
t7 2 jo

said at the end of 624: "I dismiss the application". which you seem to assume, by the way, would have been shown to his Honour; I am not sure that that necessarily follows, it has been done in the registry.

DR PANNAM:

It was filed in the registry, yes.

KEELY J:

So on the face of it it looks to me, at the moment,

as though it does not accurately reflect what his Honour

did.

DR PANNAM: I had not appreciated that point, your Honour.

Your Honour is entirely correct.

The last paragraph

of the transcript on page 624 does contain an order

dismissing the application and otherwise reserving costs

in actions. His Honour went on there to foreshadow a

reservation for costs in those other actions, 58 and 59.

So, yes, there was; upon the undertakings being given

the form of order should have recited - I seize upon the

point - that upon those undertakings being given not

only was the direction that the applicants pay the costs

of the application - that the applicants costs of the

application be paid by the first, second and third

named respondents, there should have also been an order

that otherwise the action be dismissed.

SWEENEY J:

You cannot altogether embrace that with unqualified

glee, can you?

Although you have told us of the

process of initialling, and so on, your clients were the

applicants and they had the carriage of the matter, and

it was their task to bring forward the order.

If you

have brought forward an order which does not accord with the record of proceedings, you would want to rectify the

order, would yo-U

_not?

DR PANNAM:

I understand that, but the only point that really - the

basis of my seizing upon it with apparent glee is this:

if it was rectified in accord with the last paragraph of

what fell from his Honour, then it was an order that was

against us, it was dismissing our application.

That was

the only point.

But that is not its present form.

NORTHROP J:

and we have an order, it is the order which speaks, is

it not?

If we, as a full court, have a proceeding before us

DR PANNAM: Yes.

NORTHROP J:

If we are to deal with the matter, the record of the

court shows the order to be in the form of the document to which you have referred us. It seems only orderly, does it not, that if a party says: No, although that is

our order in substance it does not accord with the

reality, before we proceed to deal with the order as it

stands, if it is not to be treated as correct one ought

to seek to have it rectified.

firco 2.2.81	17	DR PANNAM
t7 3 jo

DR PANNAM: Your Honour, we do not desire to have it rectified.

The reason why I seized upon it was as a matter of argument rather than a matter of form because that page in the transcript makes clear what otherwise perhaps would not be clear from the form of the order itself: that is, that upon those undertakings being given no

coercive order was made.

That is apparent from the form

of the order, no injunctions were granted and, indeed,

when one goes to the transcript, that becomes abundantly

clear because in the very last paragraph his Honour could

not have made it clearer because he was saying he was

disposed to dismiss the application on those undertakings

being given.

So the form of the order we are happy to live with.

It just makes clearer the point that otherwise arises -

a matter perhaps of inference from the order itself -

that it was upon those undertakings being given that the

only substantive orders that were made were an order as

to costs and,an order reserving liberty to apply.

SWEENEY J:

My comment did not turn on whether you seized on it

with glee or indifference, Dr Pannam, but as a matter of

the order management of the court's business.

:Ef it

turns out that part of the record of the court is said

to be wrong, it seems to me that that should be rectified.

The court should not be proceeding on the basis of being

told:

Oh, yes, the order is wrong but we are happy to

live with it.

If it is wrong it should be rectified.

firco 2.2.81	DR PANNAM
t7 4 jo

PANNAMi

The which has been made

o rde r ,

s o f a r a s it

s t a n d s p i s an o rde r

by	t h e c o u r t f o r b e t t e r o r

f o r worse

- we

a r e con ten t wi th it

i n i t s p resen t

form,

w e do no t p a r t i c u l a r l y want

t o have

changed;

t h e r e i s an appeal t h a t

has been

i n s t i t u t e d from

t h a t o rde r and we

a r e h e r e

simply

t o submit t h a t t h e appeal

from

t h e o r d e r i n t h a t

form i s an incompetent appeal .

Now, t h a t w e have

w e do not see t h a t it i s p a r t of any onus

t o c a r r y a t t h i s t i m e t o ensure t h a t

t h e o rde r accords with a

d i s p o s i t i o n of

case

i n my

l ea rned f r i e n d ' s favour ,

t h a t i s h i s -

SmENEY J:

Well, cannot blow ho t and co ld and have an argument

i f you

t a k e t h e o r d e r a s it

s t a n d s you

based

t h e t r a n s c r i p t ?

PANNAM:

W e a r e con ten t t o proceed on

t h e o r d e r a s it

s tands , your Honour.

SWEENEY

J :

There

some

a u t h o r i t y t h a t t h e o r d e r which

speaks., and

anyone who

says t h e t r a n s c r i p t

says

something t o t h e con t ra ry needs	t o r e c t i f y t h e
o r d e r ,

DR PANNAM:

Y e s .

Indeed.

SWEFTiEY

J :

So you

a r e proceeding on t h e b a s i s of

t h e

order?

And you agree , do you, t h a t you cannot

ga in any comfort from r e f e r r i n g t o what might be

s a i d t o have

been

what

a c t u a l l y happened?

PANNAM:

Yes,

we a r e happy t o proceed on t h a t b a s i s ,

your Honour.

NORTHROP

This might be premature a t t h e moment bu t

I having n a t u r e of

some

d i f f i c u l t y i n understanding t h e

t h e appeal .

I have no t seen any appeal

documents y e t , I must confess .

But, it seems t o

m e t h a t b a s i c a l l y what

i s being

sought

is t o be

r e l i e v e d of

t h e undertaking.

t h a t t h e n a t u r e

t h e appeal ,

o r what?

PANNAM:

That

i s one

our p o i n t s

t h e o b j e c t i o n

t o competence

t h a t my

learned f r i e n d i s r e a l l y

seeking t o have h i s own

consensual voluntary a c t ,

t h a t i s g iv ing an undertaking on behalf

h i s

c l i e n t s ,

withdrawn

him

upon

a p p e l l a t e c o u r t

presumably

t ak ing

d i f f e r e n t view

t h e ma t t e r s

t h a t f e l l from h i s Honour

M r J u s t i c e Smithers

dur ing t h e course of

argument but unre la ted t o any

judgment

t h e c o u r t which

a lone determines t h e

b a s i s upon which an appeal can be made.

That i s

a t t h e h e a r t

our

o b j e c t i o n t o competency.

SWENEY

J ;

Is r a i s e i n t h i s case and

t h e r e any

d i f f e r e n c e between

t h e p o i n t

you

t h e p o i n t w e had

t o cons ider

i n t h e P h i l i p Morris

case?

f i r c o 2.2.81

PANNAM

t 8 1 Em

---

-.p-

l'--

-	., -I---

DR PANNAM:

I not iced i n t h e cornrnentories'-a

r e f e r e n c e

t o t h e unreported dec i s ion i n t h e p h i l i p Morris and David Brown, o r Alan Brown, and I have made arrangements t o g e t a copy of t h e appeal book -

because

t h e mat ter

i s c u r r e n t l y on

appeal

I understand

t o t h e High Court but I a m not - - -

SWEENEY

I understand

i n t h e l i g h t of

r e c e n t

h i s t o r y it seems

reasonable t o assume

t h a t judgment

i n t h e P h i l i p Morris case might	be given f a i r l y
qu ick ly .f

DR PANNAM:

Yes.

SWEENEY

J :

And

it may

be t h a t it would be i n t h e i n t e r e s t s

a l l t h e p a r t i e s i n t h i s case t o see what

t h e

High Court is i n c l i n e d bo t h e view,

lays,down i n r e l a t i o n t o t h i s ques t ion

t h e e f f e c t of

an undertaking.

b ro the r Northrop

which

I need ha rd ly say

goes without saying is very l i k e l y t o be r i g h t ,

t h a t t h e undertaking

p o i n t

t h a t

a r o s e

i n t h e P h i l i p

Morris case might	n o t have gone s o f a r i n t h e
High Court.

NORTHROP

They

g o t

s p e c i a l

l e a v e t o appeal

only

t h e r e .

do n o t t h i n k

t h e appeal -has-been heard.

I ri '

DR PANNAM:

Yes, my

learned f r i e n d - - - -

SWEENEY J:

My P h i l i p Morris appeal

bro the r Northrop and I both sat i n t h a t

s o f a r a s it

r e l a t e d t o t h e

e f f e c t of

an undertaking and my

r e c o l l e c t i o n of

i s t h a t t h e ques t ion

t h e r e

a r e q u i t e

s t r o n g

s i m i l a r i t i e s between

t h a t a r o s e

i n t h a t case

and

t h e q u e s t i o n - - -

you	a r e r a i s i n g now.

DR PANNAM:

Except t h i s .

The p o i n t t h a t - - -

SWEENEY

J :

You i n t h a t case?

had

oppor tuni ty t o s e e t h e m a t e r i a l

DR PANNAM:

No, I caused a search t o be made and it ended i n an appeal book

i n a s o l i c i t o r ' s o f f i c e who

was

n o t my

i n s t r u c t i n g s o l i c i t o r and

t h a t was

j u s t

be fo re lunch s o I have not r e a l l y seen a copy of

t h e judgment

i n t h a t case and I made some enquiry

of counsel who t h e mat ter was

were

i n it but t h e i r r e c o l l e c t i o n of

n o t a s accura te a s it might

have

been. But r e a l l y does no t depend upon

t h e p o i n t

w e

e s s e n t i a l l y r e l y on

he re

t h e ques t ion ,

a s I understand

i t , w a s . . . . . . . . .which is whether t h e cour t

can r e l i e v e a p a r t y of

an undertaking t h a t has

been given t o it and i n what circumstances i f i t - - can .

Here,

t h e po in t

i s of

a d i f f e r e n t kind.

I t i s

where no o r d e r was made upon an undertaking being

given

o t h e r than an

o rde r of

t h e c o s t s and

t h e

f i r c o 2.2.81

PANNAM

t 8 2

s m

r e s e r v a t i o n

l i b e r t y t o apply.

What

w e d e s i r e

t o say is t h a t you

cannot r a i s e i n an a p p e l l a t e

c o u r t t h e having r e s u l t e d a g a i n s t

s u b s t a n t i v e p o i n t

t h a t

you

halve( avoided

you

g iv ing an undertaking

i n t h e form of

an appeal from an o rde r a s t o c o s t s

only.	I t	is an	e n t i r e l y d i f f e r e n t p o i n t , a s	w e
see it.

NORTHROP

Looking a t t h e n o t i c e of

appea l , t h i s was

n o t i c e	of	appeal da ted 9 December	1980, i s t h a t
c o r r e c t ?

DR PANNAM:

Y e s .

I was

going t o t a k e t h e c o u r t t o t h a t

next .

NORTHROP

Y e s bu t it on t h e f a c e of

it seems t o be

d i r e c t e d t o t h e ma t t e r s

i n 58;,and 59,

t h e r e f u s a l

t o admit

evidence

a s d i s t i n c t

from

t h e a p p l i c a t i o n

153 of 1980.

PANNAM:

What it does is - of

course , t h e e f f e c t

t h e i n j u n c t i o n w a s t o prevent

t h e use of

t h e

information o r t h e documents - - -

NORTHROP

The

in junc t ion?

Undertaking?

PANNAM:

s o r r y ,

t h e e f f e c t

t h e i n j u n c t i o n

t h a t

was sought, t o prevent t h e use of

t h e undertaking t h a t was

p r o f e r r e d was

t h e information o r t h e

documents

i n t h a t proceeding

and

t h a t is r e a l l y t h e

only

l i v e i s s u e

i n t h e p r e s e n t

appeal

a s t o whether

my learned us ing t h e documents

f r i e n d ' s c l i e n t can be

r e s t r a i n e d

from

i n a c t i o n No.58/59

e i t h e r on

appeal

o r e i t h e r a f t e r a

judgment

some

a p p l i c a t i o n

t o reopen.

But

t h e important

p o i n t

from

t h e n o t i c e

appeal

t h a t we

d e s i r e t o draw

a t t e n t i o n t o is ,

t h a t it

i s c l e a r from t h e n o t i c e of

appeal

t h a t

what

i s sought t o be put

i n i s s u e on t h e appeal i s

t h e s u b s t a n t i v e ques t ion

namely,

whether

o r

not

. M r J u s t i c e Smithers

should

n o t

express t h e view

a s

he d id t o Hers f i e ld i n t h e absence of

t h a t

i n j u n c t i v e r e l i e f

would

have

been

a v a i l a b l e

an undertaking being

profer red .

The

appeal goes t o t h e heakt of

t h e ma t t e r a l though

i s n e c e s s a r i l y

appeal

a g a i n s t

o rde r

a s

t o c o s t s .

And

t h e p o i n t we

d e s i r e t o r e l y on

u l t i m a t e l y ,

and

w i l l t a k e

t h e

c o u r t

s h o r t l y through

t h e argument t h a t we'submit i s conclusion,

bu t what we

say

is t h a t t h e cour t

should not

i n t h e e x e r c i s e of

i t s

a p p e l l a t e

j u r i s d i c t i o n

al low

s u b s t a n t i v e

p o i n t

which

has gone by

d e f a u l t -below,

where

t h e s u b s t a n t i v e

p o i n t has no t been resolved i n t h e form of

a judgment

o r

in t h e form of

a coerc ive o rde r t o be

r a i s e d i n t h i s

f i r c o 2.2.81

2 1

PANNAM

t 8 3

s m

informal 'way i n t h e con tex t of

an appeal which must

only be

appeal

a g a i n s t

o r d e r f o r c o s t s o r

a r e s e r v a t i o n must be

f o r l i b e r t y t o apply,

whichever,-

c e r t a i n l y cannot

t h e

l a t t e r it

t h e r e f o r e

i n t h e context of

a p p l i c a t i o n t o appeal

o r d e r

a s

t o c o s t s .

What a l though s e c t i o n 24 of

we d e s i r e t o t a k e t h e

c o u r t

t o is

t h a t

t h e Federal

Court Act

i s

wide

t h e r e a r e l i m i t s t o it

a s t h e c o u r t has

a l r eady

i n d i c a t e d

and,

i n our

r e s p e c t f u l

submission,

one

t h e l i m i t s t o it is ,

o r should be,

t h a t t h e c o u r t

ought t o d ismiss a s incompetent any appeal t h a t i s

an appeal which	seeks t o ques t ion merely an o rde r
a s t o c o s t s .

NORTHROP

One o t h e r ques t ion of

fact :was

aryorder

o r dec i s ion made i n 58 and/or

59 of

1980 on i

4 December	r e fus ing	t h e a p p l i c a t i o n	t o reopen	t h e
case?

DR PANNAI4:

No, s a f e t o say c o r r e c t l y

I t h i n k my

learned f r i e n d - I t h i n k I a m

leai tnedt ' f r iend ind ica ted

t o t h e c o u r t

would

n o t

p r e s s

h i s

a p p l i c a t i o n

and

on t h a t adjourned .

i n d i c a t i o n

being

given

t h e ma t t e r

w a s

MOSHINSKY:

W e l 1 , ' ) l i t i s

a lmost

r i g h t .

I f

t h e

c o u r t

p l e a s e s ,

what

a c t u a l l y happened was

t h a t I

asked f o r t h e

c o u r t t o be

reconvened

s o I

could then

i n d i c a t e

i n t e n t i o n t o t a k e m t a n o t i c e of

motion

t o

reopen t h e case .

But a f t e r t h e argument on t h i s

i s s u e of

i n j u n c t i o n it was

no t

necessary

t o p r e s s

t h e ma t t e r

f u r t h e r and

t h e r e was

need

t o t a k e

o u t c

n o t i c e of

motion.

L-

DR PANNAM:

So it seemed t h a t i n t h e . . . . . -58 and 59

what happened was - indeed, t h i s appears from

t h e very page

t h e t r a n s c r i p t

t h a t was

l a s t r e f e r r e d

t o your Honour, page 624, t h e r e was simply a

r e s e r v a t i o n

t h e c o s t s

i n a c t i o n s

and

i n

r e s p e c t

t o t h e reopening

t h e case and

t h e c a l l i n g

f u r t h e r evidence o r us ing f u r t h e r evidence.

And

I do n o t t h i n k t h a t i s . . . . . everything taken up.

SWEENEY

D r Pannam,I

s t i l l f i n d some

d i f f i c u l t y wi th

t h e

form of

t h i s order .

Your n o t i c e of motion i s taken

ou t i n an of appeal and you a r e beginning t o say now what may

appeal which

i s

c o n s t i t u t e d

t h i s n o t i c e

o r may

no t be done by way

t h e c o u r t ' s o rde r i.n

t h a t appeal.

I f t h e f a c t be,

and I do no t have any

knowledge

i t , bu t

i f t h e f a c t be t h a t M r J u s t i c e

Smithers made

o rde r

d ismiss ing

t h e a p p l i c a t i o n

on 4 December

1980 t h a t seems t o me

t o throw a l i g h t

t h e appeal .

I f

t h e appeal

i s

a g a i n s t

o r d e r

f i r c o 2.2.81

2 2

PANNAM

t 8 4 s m

(Continued on page 22a)

dismissing the application, ,it seems to,

d,"'

>A'-

'*me

.to	be a different kind of an appeal from in

appeal against an order which is silent as the

application and if we have got to consider your

notice of motion in that appeal,it seems to me that

we ought to know what the order is.

firco 2.2.81

22a

DR PANNAM

t8 5 sm

(Continued on page 23)

DR PANNAM:

Well, I ' can do no more than say. what happened

w a s w a s t h a t a t t h e end

t h e hear ing ,

i n f a c t

I t h i n k i f I t a k e your Honours back t o pages 623

and 624 it was

when h i s Honour w a s i n v i t e d t o

formula te t h e in junc t ion ;

t h i s w a s a t page

623,

t h a t h i s Honour and i f I may

say s o , w i t h t h e

g r e a t e s t r e s p e c t

t o him,

confused

t h e o r d e r s

t h a t

r e a l l y d e s i r e d t o note .

But

it w<as i n those

c:ircumstances t h a t I

s a i d ,

t h i n k on page 622,

T a m a f r a i d I am

e n t i r e l y confused,

your Monour,

because they had been wrapped up, and it w a s i n

those circumstances

t h a t I

i n d i c a t e d perhaps

f o r

t h e convenience of

everyone,

t h a t a d r a f t be

c i r c u l a t e d

and

i n i t i a l l e d by

counsel

a s t o r e a l l y

what

w a s w e w e r e a l l c o ~ l s e n t i n g

t o doing.

That

i s why

t h e i n i t i a l d r a f t t h a t was

i n i t i a l l e d by

counsel 'came

i n t o ex i s t ence ,

and

h i s

Honour

t-hought t h a t w a s a good idea .

t h a t by

a l l means and show it t o counsel and t e l l m e whether

you a r e agreed about it o r no t ;

h i s Honour then went

on:

perhaps again ,

i f I could j u s t read t h e r e s t

t h a t t r a n s c r i p t

a f t e r

"yes".

Then

m y

l ea rned

f r i e n d ,

M r M r k e l who,

course,

appeared f o r 13ersfield

i n t h e Fi rona

a c t i o n

s a i d :

?-'**V

ElURTHROP J: !.c

Which page is t h i s a t ?

DR PANMAM:

A t page 624:

and maybe I should n o t have

embraced

qu ick ly a s I

d i d without

r e a d i n z . t h e

con tex t .

The

p o i n t

t h a t

i s

c u r r e c t l y g i v i n g

yourHonour,

t h e p res id ing

judge

some

d i f f i c u l t y ,

because 'lt

w a s then M r Merkel who then re-appealed,

and s a i d

Yes,

your Honour,

he i s i n a c t i o n No

and 59 , , . , , , . . . . . what has

t r a n s p i r e d t h e only

NORTHROP

Was

he i n t h a t m a t t e r .

. c

PANNAP,:

Yes.

58 and

59.

was

counsel f o r H e r s f i e l d

i n

t h a t .

A s I

understand

what

has

t r a n s p i r e d

t h e only t h i n g I would seek . . . . .

. . . *	have taken p lace , and
we would - - -

and then h i s Honour

c u t across :

Yes,

d ismiss

t h e a p p l i c a t i o n and

r e s e r v e

t h e

c o s t s

i n both

a c t i o n s

and 59 . . . . . . . . . . . and t h e

c a l l i n g of

f u r t h e r

evidence.

So i t may

we l l be t 5 a t i n t h e d i smissa l of

t h e

a p p l i c a t i o n ,

and

indeed

t h e b e t t e r

reading

t h e

t r a n s c r i p t

seems

t o i n d i c a t e t h a t

it was

t h e

PANNAM

d i s m i s s a l . o f

t h e a p p l i c a t i o n

t h a t

had

been

made

i n

a c t i o n s no

and

t o reopen

t h e case ,

r a t h e r

than a d i smissa l of

t h e appl ica t ion

t h a t was

made

our

motion

f o r i n t e r l o c u t o r y

in junc t ion .

NOR.THROP

And t h e a p p l i c a t i o n which

if t h a t a p p l i c a t i o n w a s dismissed,

i s t h a t

i.s t h e

s u b j e c t

o r

tha t .

dec i s ion which

t h e s u b j e c t

t h e appeal?

PANNAM:

Y e s , t o m e t h e b e t t e r reading of

it i s e n t i r e l y equivocal ,

but it would

seem

t h e l a s t paragraph a s

one s e e s it

i n context wi th t h e no tes M r Merkel

who had no p a r t of our proceeding, but who only

appeared

t o resist

learned

f r i e n d ' s

a p p l i c a t i o n

t o reopen i n a c t i o n 58 and 59 of

1980 - he s a i d :

Well,.

w e want

r e s e r v a t i o n

c o s t s

and w e itrould - - -

and

h i s Honour

s a i d :

Y e s ,

d ismiss

t h e a p p l i c a t i o n

and

r e s e r v e

t h e

c o s t s ,

Now

it is e n t i r e l y equivocal ,

I suppose, whether

t h e dismissal.

t h e a p p l i c a t i o n

a y a i n s t M r Merkel

or t h e d i smissa l Honour goes on t.o say:

our a p p l i c a t i o n -

but

h i s

r e s e r v e

t h e

c o s t s

i n

both

a c t i o n s

and we would,

s i r , apply some presumpt.ion of r e g u l a r i t y

t h a t when

counsel. who

w e r e present , prepared,

and a l l

p a r t i e s

i n i t i a l l e d

t h e

d r a f t

and

t h e

d r a f t

u l t i m a t e l y

became

an o rde r of

t h i s c o u r t ,

t h a t r e a l l y t h a t would

provide

very s l ender

foundation

f o r an

a p p l i c a t i o n

t o r e c t i f y an

o rde r

because

i s

equa l ly

c o n s i s t e n t

with

h i s Honour

simply d ismiss ing t h e appl ica t ior l

t o reopen

a c t i o n s 58 and

59,

a s it

i s wi th d ismiss ing

H e r s f i e l d ' s

a p p l i c a t i o n

i n VG

153.

NORTHROP:

Does

t h i s then make

your p r e s e n t n o t i c e of

mot.ion

wrongly framed?

DR PANNAM:

No.

NORTHROP 3 : Why

i s no t

t h e appeal.

a g a i n s t

t h a t p a r t i c u l a r

d e c i s i o n ,

then?

DR P.P,NNPN:

The d.ecision w e have -

NORTHROP:

Because t h a t l a s t paragraph, on your submission,

now	i s i n a c t i o n 58 and 59.

DR PAPINAM:

w e a r e no t concerned wi th 58 and 59.

I am n.ot

ret .ained i n t h a t a c t i o n ,

learned jun io r

i s not

r e t a i n e d

f i r c o	2.2.81
T9 2 b

NORTHROR

concern i s on t h e f a c e of

t h e n o t i c e of

appeal ,	I am	unsu.re which one is t h e s u b j e c t of	t h e
appeal.

PANNAM:

I n my

. respectful submission,

no,

t h e n o t i c e of

appeal

i s

clf3arl.y t h e r e a r e t h r e e persons,

F i r o ~ a ,

Theodore

and Theodore, and Cohen and Cohen.

The two Theodore 's ,

Firona,

Cohen -and Cohen,

who have appealed,

t h e o t h e r

p a r t i e s w e r e t h e C e e r Park Discount

and

P a v l i d i s ,

who

have

e l e c t e d n o t t o appeal ,

and t h e respondents

axe our

c l i e n t s Hers f i e ld

and

George

Herscu.

SWEENEY J:

I have some diff ic!ul ty i n understanding it, I must

say ,

Pannam,

because i f you t a k e t h e o r d e r of

t h e

23 December

- d a t e en te red 23 December,

d a t e of

o rde r

4 December, i n t h e one hand - do

you have t h a t -

and t h e no tes of

appeal

i n t h e o the r?

PANNAM:

Y e s .

SWEENEY J:

The o rde r i s headed VG.153 of 1.980, t h e no tes of appeal i s headed VG.156

i n t h e case of

t h e document

I have;

it is 153 and three s t r u c k o u t and s i x appears

i n i n k above

it, and i f you look a t t h e p a r t i e s i c

t h e o r d e r of

December,

your c l i e n t s appear i n t h e

same

way,

bu t t h e respondents

i n t h e o r d e r a r e more

numerous

than

t h e a p p e l l a n t s i n t h e n o t i c e of

appeal .

PANNELM:

That i s simply because - t h e r e a r e two p o i n t s t o be made about t h a t .

F i r s t of

a l l , t h e n o t i c e of

appeal i s an in-house

document of

l ea rned f r i e n d ' s

i n s t r u c t i n g

s o l i c i t o r s ,

and

n o t a

document

t h e

c o u r t and

they have

e l e c t e d simply

t o say,

t o i d e n t i f y

i n t h e t i t l e ,

r a t h e r than

i n t h e body

t h e document,

who

t h e a p p e l l a n t s

a r e ,

because

i s p e r f e c t l y

c l e a r

t h a t t h e heading of

t h e n o t i c e of

appeal i s wrong,

and

it should have been i n t h e same form as i n a c t i o n under

VG.153

of 1980, s o you would have t o go t o

che t i t l e

t o f i n d o u t who

t h e a p p e l l a n t s a r e .

And

t h e

second

observat ion t o be made:

it would appear t h a t it i s

t h e p r a c t i c e

t h e r e g i s t r y

t h e c o u r t

t o g i v e

appeal

d i f f e r e n t num.ber

than

t h e o r i g i n a l

proceeding.

That seems t o be a very confusing aspec t of t h e

a h i n i s t . r a t i o n of

t h e r e g i s t r y ,

but

t h a t

s e e m s t o be

upon

enquiry made,

t h e p r a c t i c e .

SWEENEY J:

Well,

,who are t h e p a r t i e s , do you say,

t o your-

n o t i c e of

motion

i f w e t u r n t o t h a t ?

DR PANNAM:

To our n o t i c e of motion?

SWEENEY J: Yes.

PANNAM:

The p a r t i e s ,

F i rona , Theodore and Theodore,

Cohen

and

Cohen,

they

a r e t h e only

a p p e l l a n t s .

f i r e o 2.2.81	25	DR	PANNAM
t 9 3 6n

SWEENEY

3 :

W e l l ,

what

happened

i n r e l a t i o n t o an o r d e r

where	p a r t i e s o t h e r tha.n those, w e r e p a r t i e s	t o t h e
order?

DR PANNkM:

A l l t h a t has happened is - and I say s o wi th

r e s p e c t

t h a t my

l ea rned

f r i e n . d l s i n s t r u c t i n g

s o l i c i t o r s ,

when

they - o r whoever prepared t h e

n o t i c e

appeal ,

made

t h e e r r o r

i n . . t h e sense t h a t

t h e t i t l e t o t h e a c t i o n should have

been

i n f u l l

t h e p a r t i e s VG.153

1980 then t h e r e should have

been

a p r e f a t o r y averment

saying t h e f i r s t ,

second,

t h i r d and

f o u r t h named

respondents

t a

t h e o r i g i n a l

a p p l i c a t i o n under

VG"13

1980 d e s i r e d t o appeal

and go on;

they have n o t done t h a t .

What they have

done

i s ,

they have

i d e n t i f i e d themselves

a s

a p p e l l a n t s

and

a l s o

i . den t i f i ed

t h e

o t h e r

p a r t i e s

who

are

no t

appeal ing,

merely

i n t h e i r d e s c r i p t i o n

t h e proceedings.

Now

t h a t i s no t an e r r o r t h a t

has been made by

t h e c o u r t ,

it is an e r r o r simp1.y

i n t h e heading oE

t h e document

t h a t i n s t i t u t e s t h e

appeal

t h a t w e are concerned t o have dismissed as

incompetent,

SWEENEY

You want an o rde r only a g a i n s t Firona P t y Limited, P e t e r Theodore and Beverley Lorraine Theodore, and

Cohen

and Cohen

p a r t n e r s h i p ,

i s ' t h a t so?

DR PANNAM: SWEENEY 3 :

Y e s ,

t h a t i s so.

So you. have n o t fa . l len i n t o any t r a p based on t h e

omission

from t h e n o t i c e of

appeal of

any p r e f a t o r y

averment of t h e kind you ind ica ted?

DR PANNAM:

No, i n s t r u c t i n g

indeed n o t , and I say f rank ly ,

t h a t my

s o l i c i t o r appears

t o have

lapsed

i n t o

t h e s a m e e r r o r ,

wi th

t h e heading

t h e n o t i c e of

motion which again i s n o t proper ly headed,

it should

have

been

headed

i n t h e o r i g i n a l

a c t i o n presumably,

But t h e confusion about t h e numbers

a s t o t h e

d i f f e r e n t o rde r ,

t h a t i s

caused by

t h e p r a c t i c e

t h e r e g i s t r y i n r e l a t i o n t:o

t h e numbering

appeals .

MORTHROP

156 - t h a t i s t h e appeal i s it n o t ,

t h e r e i s no

mistake

t h e r e .

PANNAM:

Yes,

appeal i a 156 but. it i s 156 t h a t i s t h e appeal and

153 - - -

but t h e only problem t h a t a r i s e s i s t h e

NORTHROP

That i s t h e whole ques t ion , I do no t know whether i t i s o r not .

Beca.use t h e onl-y r e fe rence t o o t h e r

proceedings a r e t o 58 and 59.

DR PANNAM:

W e l l , because t h e r e w a s no judgment

it i s c l e a r l y n o t an appeal in 58 and 59,

a t the t i m e t h a t it

w a s f i l e d a t t h e r e g i s t r y .

There can only be an

f i r c o 2.2.81

PANNAP1

t 9 4 dn

(Continued on page 26a)

appeal wi th in t h e ti.me l i m i t of

an appeal ,

a s and

from t h e handing down by h i s Honour of h i s

judgment

t h i s morning.

f i r c o

2 . 2 . 8 1

26a

DR. PANNm

t9 5 dn

(Continued on page 27)

NORTHROP J:

I am talking about the last paragraph of the

transcript which is referred to, the dismissal of the application ta reopen those matters for the admission of further evidence. dismissed with costs, by the

look of it.

DR PANNAM:

Your Honour, all I can say is that we come along

here as it were to say that whatever be the status of

the appeal that has been instituted by our learned

friends there is a fundamental reason why it is

incompetent.

Now, there may be all sorts of reasons

why he might want to amend the form of the order or he

may want to do a lot of things but we are not - - -

for our part, we are prepared to assume for the purposes

of the present application, if the court will allow us

to assume, the regularity in form rather than in substance

of the documents in the sense that the notice of appeal

is an appeal that was given in VG153 of 1980 and that the

notice of motion is directed to an attack on the

competency of that appeal and the order that was made is

an order that has nothing in it other than what appears

in the document bearing the court's stamp of 4 December

1980.

That is all we can say about it.

If the court is

not prepared to allow us to raise the point on that material then we will have to consider the position afresh but it is my learned friend's problem rather than

ours because it is his appeal.

We are concerned to

resist the appeal by any point that is available to us.

SWEENEY J :

You can only take steps against the appellants?

DR PANNAM:	Yes.
SWEENEY J:	Not against the people who might on some view have

been appellants?

DR PANNAM: Yes.

SWEENEY J :

And we should take it, as I understand you to submit,

that the parties named as the respondents in the order of

4 December, other than the three parties, four parties,

described as appellants, are content with the order?

DR PANNAM: Yes, indeed.

There is no notice filed in the

Registry, there is no appearance for them, there is no process being directed towards them because it is simply a dead issue so far as Hersfield and they are concerned.

They gave their undertakings:

the undertakings stand

and no appeal has been instituted.

firco 2.2.81	27	DR PANNAM
t10 1 ep

SWEENEY J

Perhaps the discussion that we have been having

about the relationship between page 624 of the

transcript and the order of 4 December illustrates the

origin of the rule why courts look at orders and not

beyond them.

DR PANNAM:

Indeed, it is very salutary reminder of the sound

basis of that rule and we would invite the court to look

at the order rather than the transcript and if I erred in

taking the court to the transcript it was simply t.o give

the background to the order to explain the way in which

the point came up. With that background in mind, may

I take the court through a series of steps which

constitute the foundation of our argument; they are a

series of submissions we put to the court.

The first is that the appellate jurisdiction of this

court only arises in relation to what are described as

judgments and could I refer the court to section 2 4 of the

act, 25 of the act, and the definitional section.	I first
take the court to section 2 4 :

Subject to this act and to any other act whether passed before or after the commencement of this act -

and I leave out some words in parenthesis -

... the court has jurisdiction to

hear and determine (a) appeals from

judgments of the court constituted

by a single judge.

Then one goes to section 25 and finds in sub-section

(i) :

The appellate jurisdiction of the court shall, subject to this section and the provisions of any other act, be exercised by a full court.

Then one goes back to section 4 of the act and finds

a definition of judgment and there judgment is defined as

meaning :

A judgment, decree or order, whether final or

interlocutory or a sentence.

Now, it is our respectful submission that the only

judgment that can be subject to an appeal under section 24

and 25 of the act is the order that there be paid the costs

of the applicants by the respondents for whom my learned

friend appears and who are the present appellants because

there is nothing in the notice of appeal that would

indicate or be any foundation againstcan appeal against

an order that would be a reservation of liberty to apply;

the substance of the appea1,as is made clear, must'be

against the only substantive judgment being an order that

costs be paid.

firco

2.2.81

DR PANNAM

Now, if that is so - as we'submit it is - then

the question really arises as to the nature of the point ~ t h t ~ i ~ t ~ ~ Zlear that the appellant desires to rely upon in the appeal and we would invite the court to come

immediately to the conclusion - and I do not think that my learned friend would again say this - that the point that is sought to be relied on has nothing to do with

principles upon which orders as to costs are made.

So he is not appealing the order as to costs qua':

an order as to costs, he is seeking to raise the

substantive point that was resolved in argument against

him, but in no other form, by the appeal which has been

instituted against the order that has been made as to

costs.

In other words, he is not saying, the judge erred in his discretion as to costs because he should not

have ordered us to pay the costs at all.

He should have

acted on some other principle and ordered someone else

to pay the costs.

That is not his point.

The point

that appears clearly from the notice of motion is there

is an attack - - -

NORTHROP J:

Notice of appeal, I think.

DR PANNAM:

I am sorry, the notice of appeal.

There is sought

to be raised an attack upon the foot that was not

allowed to go to coercive order below upon my learned

friend giving undertakings and in respect of which his

Honour delivered no reasons for judgment, because if

one goes to the notice of appeal and finds the grounds -

apart from the normal ones that are part and parcel of

every notice of appeal, that the court acted on a wrong

principle or it was an error in law and it was all

wrong in law - the only specifically identified ground is

the court acted upon a wrong principle - I am reading

from paragraph 4 ~ : ^

, v--

...	in holding that a particular document

hereinafter referred to as the said

. . . . . . . . . . in action No. VG58

of 1980.

Now, we invite the court to say that that is the point,as appears clearly from the notice of appeal,

that is sought to be raised, so that it said, well, you

should not have made an order as to costs which is the

judgment against my clients because his Honour was wrong

in, in effect, coming to the conclusion that they did

not have the right to use the document in the manner in

which they proposed to use it.

In our respectful submission, a court, as a matter

of assessing the competency of appeals, should not allow

an appeal from an order as to costs to be used as the

basis for an attack upon the sub-statrum of that order

firco 2.2.81	29	DR PANNAM
t10 3 ep

that was never the subject of a-coercive order or reasons for judgment of the court below, I will proceed, if I may, to develop the reasons for that;.

SWEENEY J:

Before you do that, looking at the terms of

paragraph 4A of the notice of appeal, did the court hold

that a particular document, so described, could not be

used?

DR PANNAM: No.

The court made no such holding. The court

made no holding at all.

My learned friend, fearful of

the holding, thinking that his Honour's statements

during argument were against him, came back after lunch,

gave an undertaking in order to avoid a judgment being

given and coercive orders being made, found himself

visited with an order for costs and now seeks to appeal

for costs.

It is just entirely incorrect, in our

respectful submission, to say that Mr Justice Smithers

made any order at all or acted upon any wrong principle

!	that is referred to in paragraph 4A.
or, indeed, did anything that remotely comes near to a judgment in the required sense on the substantive point

His Honour,during the course of argument, to be

sure, made several statements that made the inclination

of his mind clear - - -

SWEENEY J:

Perhaps one should say the then inclination of his

mind.

DR PANNAM:

Yes.

SWEENEY J:

Just as counsel change their minds after lunch, it

is not unheard of for judges to do so.

DR PANNAM:

Well, indeed; each of your Honours experience would

indicate that sometimes you go from the bench with a

tentative view and another look at the transcript or a

consideration of the authority leads one in another

direction.

So that here the learned primary

judge was not given"

the' advantage of that course, he

rather was confronted with a situation where my learned friend, to use a colloquialism, tossed in the towel at 2.15.

firco 2.2.81	DR PANNAM
t10 4 ep

He said: All right, then, we will give those

undertakings, we will not put you to the trouble of

reasons for judgment or an order, and we will go away.

SWEENEY J:

Or, indeed, of delivering judgment.

hear ing ,

before M r J u s t i c e Smithers,

made

it c l e a r

that . I

d i d n o t want

t o pursue m y oppos i t ion because

a s I understood h i s reasons ,

t h e r e was

no b a s i s

f i r c o 2.2.81	38	MR. MOSHINSKY
t 1 2 4 dn

f o r me ' to cont inue my

oppositAon,

but I reserved

m y , r i g h t

t o a rgue .the ma t t e r

i n another

c o u r t ,

namely an Appeal Court.

There could be no

o t h e r

b a s i s

f o r

it.

SWEENEY J:

I f you have not. g o t a r i g h t , you cannot do

anything about

purpor t ing

t o r e s e r v e

it.

NORTHROP J:

O r

i f reasons have n o t been given, you cannot

t a k e - - -

MOSHLNSKY:

Yes, it is j u s t a mat ter of phraseology, it

was q u i t e c l e a r , a s I hope t o show by

looking a t

t h e t r a n s c r i p t ,

t h a t

both h i s Honour

and myself

understood t h a t my

undertaking was

given s u b j e c t

t o a

r i g h t of

appeal .

SWEENEY

Yes,

you see t h a t g e t s you back t o an o rde r .

A s

understand

t h e p o s i t i o n ,

i f

t h e f u l l c o u r t of

c o u r t has an

appeal before

it, r e l a t i n g t o an

o r d e r ,

t h e o r d e r

is d e a l i n g with

i s t h e doc:wnent

which is found i n .the record of

t h e c o u r t a s t h e

o r d e r ,

and

l e a d s t o very undes i rab le

consequences.

you a r e now

going

t o say t o u s ,

we l l ,

t r u e it is

t h a t t h e o r d e r appears t o s e t o u t my

undertaking,

but

undertaking was

given s u b j e c t t o a cond i t ion which

i s fundamentally important. t o me

and my

c l i e n t s , bu t

i.t is a

condi t ion t h a t i s no t e:cpressed

i n t h e o rde r .

I f you want

t o r e l y upon

t h a t you

have g o t t o g e t

i n t o t h e o rde r ,

and

t h a t i s a

s e p a r a t e process

from

appeal ing

a g a i n s t t.he o rde r

a s it

s t a n d s ,

a s

I	fo l low t h e procedure. .

P 4 R MOSHINSKY:

I f your Honour

p l e a s e s ,

t h i n k it must

t h e o rde r would

have

t o be va r i ed ,

because c l e a r l y

t h e t r a n s c r i p t	shows	t h a t t h e undertaking was
given - - -

SWEENEY J:

When you speak of varying an o r d e r , you may be speaking of t h e c o u r t saying new circumstances

have a r i s e n and

w e w i l l change o r vary t h e o rde r .

What you a r e seeking t o say, a s I fo l low

you, and I may be wrong, M r Moshinsky,

i s t h a t t h i s

o r d e r does

n o t

c o r r e c t l y

express what

you

d i d .

You

say you

gave an undertaking,

s u b j e c t t o a ~ n o s t

.-important condi t ion .

The

o rde r i s s i l e n t a s t o t h e

condi t ion .

MOSHINSKY:

That i s t r u e .

SWEENEY

And

you

say t h e ord.er does not f a i t h f u l l y record t h e

t r a n s a c t i o n .

MOSHINSKY:

Y e s .

f i r c o 2.2.81	M . MOSHINSKY
t12 5 dn

MOSWINSKYt

Y e s ,

,your Honour.

SWEENEY

J o

W e l l ,

t h a t is-something t h a t you need t o

t i d y up, do you n o t ,

i f it i s capable of being

t i d i e d

up?

NORTHRaPj IT;

There seem t o be two courses open,

e i t h e r

r e c t i f i c a t i o n of

t h e o r d e r

o r o therwise

o r an can be done,

a p p l i c a t i o n

t o vary . 6-

undertaking,

i f t h a t

o r t o be r e l i e v e d of

t h e undertaking

i f need be.

MOSHINSKY:

Y e s ,

t h a t would

t h e l o g i c a l

s t e p

because i n any event ,

your Honour,

t h e p a s i t i o n i s

t h a t i n a c t i o n VG58

and

t h e a p p l i c a n t s have

l o s t .

They now wish t o appeal on t h e grounds

of new evidence t h a t came t o l i g h t i n t h e course

d iscover ing

t h e o t h e r

a c t i o n

but

they

a r e n o t

a b l e

t o appeal because t h e undertaking i s i n such a

broad term t h a t it does no t a l low them t o use

t h e informat ionr they have gained f o r any purpose

whatsoever.

So an

a p p l i c a t i o n would

have t o be

made

t o t h e t r i a l judge

a t some

s t a g e f o r r e l e a s e

from t h a t undertaking on t h e grounds f i r s t l y , t h a t

t h e o t h e r

case has

been

s e t t l e d .

SWEENEY

J :

Looking a t t h e ma t t e r on t h e view t h a t seems

t o m e t o be most favourable t o you,

M r Moshinsky,

and i n r e s p e c t of

which

I might be q u i t e wrong,

you

have

an o r d e r he re wi th

r e s e r v e s t o you

l i b e r t y

t o apply on

n o t i c e t o t h e o t h e r p a r t i e s .

And,

you

say, t h a t t o your undertaking.

t h a t o r d e r omits

cond i t ion

i n r e l a t i o n

Now, on one view you may have

r i g h t under t h a t l i b e r t y t o apply t o go back

t o

t h e learned

t r i a d

judge and r a i s e your content ion

i f it be one you wish t o r a i s e .

And

i f t h e learned

t r i a l judge

is then a g a i n s t you and i f you want t o

appeal a g a i n s t t h e ques t ion a r i s e s a s t o what

h i s r u l i n g

your

a p p l i c a t i o n ,

then

course you

wish t o

t ake .

But, t h e course of

it seems

s t r a n g e s i t u a t i o n t o m e i f i n

an appeal

a g a i n s t an o r d e r s o expressed

you want t o begin by saying:	t h e o r d e r i s wrong.
Do you follow?

MOSHINSKY:

Yes,

I accept t h a t .

SWEENEY

J :

How

do w e determine what

t h e o r d e r i s ?

MR MOSHINSKY:

W e l l , your Honour,

it does seem a s i f t h e

o rde r i t s e l f does no t express what was

decided by

h i s Honour

a s a

r e s u l t

d i scuss ing i t w i t h him,

myself

and a l l t h e o t h e r counsel on

t h a t occasion.

But,

it i s submit ted,

t h e n o t i c e of

appeal

i s no t

incompetent

because

i n i t s form t h e n o t i c e o f a p p e a l

f i r c o 2.2.81	4 0	MR	MOSHINSKY
t 1 3 1 s m

SWEENEY J

But t h e appeal x<competent

b e f ~ r e ~ 4 ~ ~ + ~ g e t . . - I t . ~ 0

.the. ques t ion of

whether

--(W

"-q-~

-5

not

S - , "

- --

MR MOSHINSKYt

Yes.

SWEENEY

J :

W e do have t o have

some

r e g u l a r i t y i n our

proceedings.

I f you a r e going t o b u i l d a

house you

want

some b r i c k s t o b u i l d it wi th and your

f i r s t

b r i c k

i s t h e o rde r and

you

hand

u s t h e f i r s t b r i c k

and you say, by t h e way,

it is unsound.

So t h a t

i f you want t o do anything about it, i f you want t o

appeal a g a i n s t

it you

have

g o t t o c o r r e c t what

you

a r e seeking t o appeal

a g a i n s t , have you

not?

MR' MOSHINSKY :

Y e s ,

accept t h a t .

SWEENEY

J :

Suppose t h e r e had been no n o t i c e of

motion

a t t a c k i n g t h e competence

t h e appeal ,

and

suppose

t h e matter had

come on

i n some o t h e r f a sh ion and

you <sa&,

s a i d ,

t h e way,

t h i s o rde r i s wrong.

I am

i n c l i n e d myself

t o t h e view t h a t any judge of

t h e c o u r t ,

o r any f u l l bench

t h e c o u r t ,

would

have s a i d t o you

t h a t i f you want

f u l l c o u r t t o

do something you must g e t t h e o r d e r t h a t you

say

i s wrong i n t o a form which you are prepared t o submit

i s r i g h t , if you can.

I am not saying you can.

But it seems a i n an appeal .

cu r ious t h i n g t o be t r y i n g t o do it

MOSHfNSKY:

W e l l ,

wi th r e s p e c t ,

your Honour,

it is

submitted t h a t

had t h i s come t o a c t u a l hear ing of

t h e appeal

t h a t s t a g e ,

course,

t h e m a t t e r

would have been c l a r i f i e d .

The way i t has come t o

t h i s c o u r t -

SWEENEY

J :

How

would

it have been c l a r i f i e d ?

MR MOSHINSKY:

Well,

t h a t s t a g e ,

t h e a c t u a l o rde r would

have - it i s only t h i s morning t h a t h i s Honour

d e l i v e r e d "

judgmentsin

t h e Firona

i n t h e o t h e r

c a s e s , VG 58 and 59.

The n o t i c e of appeal was taken

ou t very

s h o r t l y a f t e r t h e hea r ing ,

December,

and

i n f a c t it

i s only now

t h a t t h e a p p l i c a n t s ,

t h e

a p p e l l a n t s ,

Firona

P ty Ltd,

P e t e r Theodore

and

Beverley

Theodore

a r e a b l e t o r e a l l y

consider

t h e i r whole

p o s i t i o n	a s t o a l l t h e i r	l i t i g a t i o n i n t h e s e two
mat t e r s .

It would have been premature t o go back t o h i s

Honour and ask him t o change h i s o rde r o r t o vary it

u n t i l he had

de l ive red judgment.

SWEENEY

J :

W e l l , be t h a t a s it may

you

a r e a s f u l l y

informed now a s you a r e ever going t o be.

f i r c o 2.2.81

4 1

MOSHINSKY

t 1 3 2 s m

(Continued on page 41a)

MOSHINSKY;

Y e s ,

SWEENEY

And

you a r e s t i l l saying i n t h e l i g h t of

a l l

t h a t

information

t h a t t h i s o rde r

does

n o t

c o r r e c t l y

r e c i t e ,

i f ' t h a t had

been

c o r r e c t d e s c r i p t i o n

of what undertaking t h a t you gave.

it does

i n r e l a t i o n t o t h e undertaking,

t h e

f i r c o 2-2.81

4 1a

MR MOSHINSKY

t 1 3 3

srn

(Continued on page 4 2 )

MR MOSHINSKY :

Well, that is not quite so, your Honour.

The undertaking that I gave is correctly recited in the order but before the undertaking was given, as a result of discussion between myself and his Honour I made it

clear and his Honour accepted the fact that the

applicants wanted to appeal, that - - -

SWEENEY J :

To appeal from what?

MR MOSHINSKY:

To appeal from his decision, that there was no

chance to use this documentary evidence.

SWEENEY J :

You say you gave such'a decision, do you?

MR MOSHINSKY:

Yes, your Honour.

SWEENEY J :

Well then, if you do it ought to be in the order.

MR MOSHINSKY:

But it was a decision which he did not incorporate

in the order.

SWEEN

'EY J:

Look, you cannot have courts dealing with what people say for a start.

If you have got an appeal against

something which you say amounted to an order you have got takes out the order but if you want to say to us that you want us to set aside an order that was made by

to get an order to have it as your first building block.

Mr Justice Smithers we have got to have an order before

us.

NORTHROP J:

Mr Moshinsky, if you turn to page 624 of the

transcript - - -

MRMOSHINSKY: 624?

NORTHROP J:

624, the last paragraph where his Honour says after

Mr	Merkells comment:

Yes, I dismiss the application and reserve the costs in both actions

. . . . . . . . . . or using further

evidence.

Is that what you say is the dismissal of your application to call evidence?

MR MOSHINSKY:

No, it was the application by my learned - - -

X did not make an application to call evidence.

NORTHROP J: You did not?

MR MOSHINSKY:

I asked that the court be reconvened so that

I could give indication to all the counsel that the

firco 2.2.81	42	MR MOSHINSKY
t14 ep 1

notice of motion would be formally taken out for an

application to have the case reopened,

NORTHROP J:

And you never moved the court to do that?

MR MOSHINSKY:

No, I never moved the court to do that.

Before

I could move the court to do that Doctor Pannam appeared and said he wanted an injunction against my clients for attempting to move the court and then his application was heard and mine was never dealt with.

SWEENEY 3 :

But you do submit that at some stage Mr Justice

Smithers made an order and you want us to set that order aside?

MR MOSHINSKY: Yes.

SWEENEY 3:

Well, it seems to me, subject to the view of my

brethren and subject to anything counsel want to put,

that if you ask a full bench of a court to set aside an

order you have got to present them with the order that

you are asking them to deal with. You have got to see

that the record of the court is in such a state that the

appeal court can look at it and say, yes, this is the

order which we are asked to deal with in such and such a

fashion, and at the moment, as I follow it, there is no

such order.

MR MOSHINSKY:

Well, your Honour,,

there is an order for costs.

SWEENEY J:	Yes, yes, but your - - - I am dealing with the point that you raised.	You say Mr Justice Smithers held
something?

MR MOSHINSKY: Yes.

SWEENEY d:

He made an order, you are saying, and I am saying to you, where is the order?

It should be before us so

that we can see what kind of an animal it is said to be.

MR MOSHINSKY:

Your Honour, when this draft order whkh is-

before the

court was signed by counsel - - - this is not the order signed by Mr Justice Smithers that is before the court, it is a draft initialled by counsel.

SWEENEY J :

Does Mr Justice Smithers sign orders?

MR MOSHINSKY:

No, the Registrar does.

But it was understood

that the order would be that upon undertakings given the

application for an injunction would be dismissed.

SWEENEY J:

Well, I am not - - - obviously, Mr Moshinsky, I can

have no knowledge of what passed between counsel and except

to the extent to which counsel have assisted us I have

got no knowledge of what passed before Mr Justice Smithers

but it seems to me to be fundamental that if you want to

firco 2.2.81

MR MOSHINSKY

t14 ep 2

(Continued on page 43a)

appeal against an order you have got to bring the order

in here sa that we may see it.

MR MOSHINSKY:

I accept that, your Honour.

SWEENEY J :

Well, what do you propose or seek to da about it?

and ask him to reconsider the order that has been signed by

the Registrar and to look at the transcript and to record

that in fact he dismissed the application upon undertakings

being given,

MR MOSHINSKY:

Well, I would seek to go back to Mr Justice Smithers

SWEENEY J:

And for the purposes of you doing so you ask us not to

proceed at the present time with Doctor Pannam's notice of

motion?

MR MOSHINSKY:

Well, I would ask you not to proceed with the notice

Of motion but it is submitted that in any event his notice

of motion is without foundation because on the order that he that in so far as it seeks to raise fundamental issues as to

relies on there is an order for costs and that is appealed.

the undertaking there are difficulties on the part of

-the appellants

but as for the order for costs that is a clear order and it

is dependent upon whether or not the Hersfield group of

companies were entitled to extract any undertaking from us.

firco 2.2.81

43a

MR MOSHINSKY

t14 ep 3

(Continued on page 44)

SWEENEV

J ;

W e l l ,

I do n o t know how you e x t r a c t undertakings

from counsel b u t i f you have g o t a good argument

about

t h e o r d e r f o r c o s t s it w i l l s t i l l be good

i n

t h e

f u t u r e .

MOSHINSKY;

Y e s ,

c e r t a i n l y .

SWEENEY

It i s no t going t o l o s e i t s v i r t u e overnight

l i k e a c e r t a i n wel l known

brand of

a popular

commodity,

i s i t ?

MOSHINSKY :

C e r t a i n l y ,

your

Honour.

SWEENEY J :

So what a r e you asking u s t o do?

MR MOSHINSKY:

Well, I ask your Honour t o adjourn t h e

a p p l i c a t i o n with	r e spec t	t o t h e competency	of	t h e
appeal .

SWEENEY

J :

The n o t i c e of

motion?

MOSBINSKY:

Y e s .

SWEENEY

Y e s .

MOSHINSKY:

The

n o t i c e of

motion

f o r a

s h o r t pe r iod of

t i m e and

t o r e se rve t h e ques t ion of

c o s t s on

t h a t

p a r t i c u l a r motion

u n t i l

t h e a c t u a l

o rde r

t h a t was

made by h i s Honour M r J u s t i c e Smithers i s . . . . .

' brought before t h i s cour t .

SWEENEY J :

You t o .-bring ,.in--:

can t ake such s t e p s a s you may be advised

t o t h i s cour t

t h e o r d e r you

say

M r J u s t i c e Smithers made?

MR MOSHENSKY:

Y e s , your Honour.

m--

NORTHROP

J :

with

t h e d i f f i c u l t y t h a t -

i f t h e o rde r

should

. have

s a i d

t h a t

t h e

app l i ca t ion . f o r t h e

i n j u n c t i o n

dismissed,

a r e you seeking - that

be s e t

a s ide?

Is t h a t n o t what you wanted?

your Ghile

concern i s

d e a l i n g , with

t h e undertaking

s u r e l y ,

no t?

MR MOSH'JNSKY:

Yes,

it is, but i n f a c t it i s a - i f you

look a t it i n t h e context of

t h e debate between

h i s Honour

and myself

i s q u i t e c l e a r t h a t t h e

a p p l i c a t i o n t o s e t a s i d e ,

t o d ismiss

t h e claim

f o r

i n j u n c t i o n s was

made

i n a way

which was

de t r imen ta l

t o t h e

i n t e r e s t s of

t h e a p p e l l a n t s i n t h i s case .

NQRTHROP. .J :

The

order

i s a d i f f e r e n t mat ter

now.

The

judgment a s I understand it i s given i n 58 and 59.

f i r c o 2.2.81	4 4	MR	MOSHINSKY
t 1 5 1 sfn

MOSHINSKY:

W e l l ,

perhaps

could

j u s t b r i e f l y o u t l i n e

what happened,

NORTHROP

l ' J I

I do n o t know t h a t it assists very much.

I am

s t i l l concerned with

t h e p o s i t i o n

t h e undertakings

because,having

regard

t o what

t h e f u l l c o u r t

has	s a i d i n r e l a t i o n t o them.

SWEENEY

I understand you c o r r e c t l y , M r Moshinkky,

and do n o t h e s i t a t e t o t e l l m e i f I

wrong,

I understand you t o be saying t h a t you r e a l l y contend

f o r t h e p ropos i t ion

t h a t before

M r J u s t i c e Smithers,

M r J u s t i c e Smithers w a s a g a i n s t you

on your

argument

of	substance.

MOSHINSKY:

Y e s .

SWEENEY

J :

And

made

an o rde r a g a i n s t you.

You

go t h a t

f a r ?

MOSBINSKY:

Yes,

SWEENEV

And g i v e an undertaking on behalf

you

say I s a i d t o M r J u s t i c e Smithers I w i l l

c l i e n t s b u t

g i v e it

t h e f o o t i n g t h a t

r e s p e c t f u l l y

submit

t h a t your

o r d e r i s wrong

and

I want

t o t a k e t h e

o r d e r t o t h e f u l l c o u r t a'2?-f1

persuade

t h e f u l l

c o u r t t h a t t h e o rde r

is wrong

then my

undertaking

would

have

been

expressed s u b j e c t t o a

r e s e r v a t i o n

which would

excuse my

c l i e n t s from being f u r t h e r

bound by it upon my

succeeding i n t h e f u l l cour t?

MR MOSHINSKY :

Y e s ,

t h a t is so,; your Honour.

SWEENE~---J:---- -

That is what I understand you t o be saying

and I am n o t f o r a moment express ing any view on

;why

-.-

t h a t r e l a t e s

t o t h e f a c t s but

t h a t i s t h e

s i t u a t i o n you	want	t o b r ing	i n before	t h e cour t?
-

- -. :. 2

\ .. .

- -

. -

. .

MR	MOSHINSKY:	yes;	th.d i s t h e s i t u a t i o n .
-.

SWEENEV J: And

t h a t i s why you want t o go back t o M r J u s t i c e

Smithers and t r y and come here wi th an o rde r

which

records what

you

say is t h e p o s i t i o n ?

MR MOSHINSKY:

Yes, your Honour.

KEELY

A s I understand

t h e t r a n s c r i p t ,

M r Moshinsky,

t h e suggest ion of

an undertaking came r a t h e r from

h i s Honour a t t h e middle of

page 620.

MR MOSHINSKY:

Yes,

it d id .

f i r c o 2.2.81

MR MOSHINSKY

t 1 5 2 sm

(Continued on page 45a)

KEELY

S :

So you would be qui te . happy

i n t h e circumstances

yourse l f

t o g ive an undertaking

t h a t s u b j e c t t o

f u r t h e r o rde r ,

which

t a k e it you

contend means

s u b j e c t

t o your

r i g h t

t o appeal?

MOSRINSKY n

Y e s ,

KEELY J:

It w i l l no t be used f o r any purpose.

And you

say ,bu t

f o r t h e

i n t e r v e n t i o n

o r

suggest ion

from

h i s Honour

t h a t you might g i v e an undertaking

i n s t e a d ,

t h a t h i s Honour

would

have gone ahead and

made i n

junc t i ans .

MOSHINSKY:

Y e s ,

it i s very c l e a r

' from t h e course

reading t h e t r a n s c r i p t t h a t before

lunch h i s

Honour

expressed himself

very f o r c i b l y by h i s

view of

t h e p r i n c i p l e s involved.

I sought t o argue

except ion

t o t h e p r i n c i p l e s

and

s a i d t h a t

a l though

was

r a i s i n g a

mat t e r

p u b l i c

i n t e r e s t

he ,

i n lids

view,

w a s no t

s u f f i c i e n t t o d i s p l a c e

t h e

fundamental

p r i n c i p l e governing d iscovery .

f i r c o

2 . 2 . 8 1

45a

MOSHINSKY

t 1 5 3

SDI

(Continued on page 46 )

I	then asked him t o postpone t h e d e l i v e r y of

judgment

u n t i l I

considered f u r t h e r ,

because

i n t h e course of

t h e d i scuss ion it

seemed

c l e a r

t h a t h i s Honour

w a s suggest ing t h a t I

go t o

another

judge

t o apply f o r f u r t h e r discovery

b u t =t occurred t o me

over lunch t h a t i f i n £act.

M r J u s t i c e Sm.ithers was

going

t o g i v e a n i n j u n c t i o n

r e s t r a i n i n g m e o r my

c l i e n t s from

us ing

t h i s

i n f o r n a t i o n ,

t h i s would

a f f e c t any

r i g h t t o go

t o

another judge

- and it would be u s e l e s s t o go t o

another judge

t o a s k f o r f u r t h e r discovery.

I n any event ,

I	w a s doubt fu l whether t h a t could

be p o s s i b l e i n law.

So it seemed t o m e my

only

r i g h t s were t o go on appeal ,

and asking the .Appeal

Court t o re-open

t h e case on t h e b a s i s of

new

evidence coming

t o l i g h t

When	I re tu rned from lunch I t o l d t h e t r i a l

judge

t h a t I

was

n o t going t o oppose

t h e a p p l i c a t i o n

f o r an

i n j u n c t i o n because

i n t h e way

i n which h i s

Honour

expressed h i s view q u i t e c l e a r l y

t h e

p r i n c i p l e s involved,

t h e r e was

no way

i n which I

could oppose . . . . . and I would r e s e r v e my

r i g h t s

appeal ,

Then h i s Honour

suggested t h a t I g i v e an

undertaking, and havi.ng come from h i s Honour I thought

it w a s u.nderstood t h a t t h i s undertaking preserved

c l i e n t ' s r i g h t s of

appeal ,

it would n o t i n any way

t a k e them away from him.

H i s Honour repeated dur ing

t h e course of

t h e t r a n s c r i p t t h a t we

w e r e t o have

t h e

r i g h t of

appeal ,

A s soon a s t h e c a s e was

over a

n o t i c e of

appeal

was prepared because it w a s n o t

c l e a r when

t h e judgment

would

be de l ive red .

Appel lants only have 21- days t o appeal .

It might

have been

u n t i l t h e end of

February u n t i l t h e judgment

had

been de l ive red ,

s o we

d i d n o t know whether w e

should wa i t f o r a very long

time.

So t h i s n o t i c e of

appeal was

prepared on

t h e b a s i s t h a t it preserved

t h e appel- lants r i g h t s should they want

t o appeal

a g a i n s t

t h e

s u b s t a n t i v e

a c t i o n

t h a t

i s

t h e

one VG.58

and 59.

A s it turned o u t tkey l o s t t h a t

a c t i o n and they do wish t o appeal ,

and they cannot

appeal u n t i l such t ime a,= an appeal board dec ides

whet.her o r n o t w e a r e allowed 1-0

use t l ~ i s

information

which we have discovered - found o u t about.

SWEENEY

W e are

i n enollgh

d i f f i c u l t y d e a l i n g wi th t h i s case

t h i n k without

a t tempt ing

t o d e a l

wi th

t h e o t h e r

one which

i s n o t before us .

A t any r a t e , you were

making a p p l i c a t i o n nboct

. . . .

Mr Moshinsky.

f i r c o 3.2.81

MOSHINSE<Y

t16 1 dn

(cont inued on page 46a)

MR MOS~IINSKY:

Y e s .

SWEENE~

W e l l , D r Pannam what do you say about t h a t .

PANNAM:

W e l l ,

your Honour,

w e oppose

t h e a p p l i c a t i o n ,

W e oppose

t h e a p p l i c a t i o n

f o r no

o t h e r

reason.

For my

learned f r i e n d t o say t h a t t h i s o rde r does

n o t r e a l l y r e f l e c t what

h i s Honour

s a i d ,

t h a t he

e n t i r e l y mistakes t h e f a c t t h a t i f your Honours

have

look a t t h e e x h i b i t

i n M r J o s e p h l s a f f r d a v i t ,

l ea rned f r i e n d ' s

i n i t i a l s a r e c l e a r l y on

it.

So presumably it i s n o t only a mistake h i s Honour made, it was a mistake he made, it i s an appeal

t h a t i s p r e s e n t l y be fo re

t h e

c o u r t ,

i t i s

i n

i r r e g u l a r form from a

formal p o i n t of

view.

W e

have n o t a s y e t addressed t h e c o u r t a s t o why

it is

i r r e g u l a r on

substan%ive p o i n t of

view,

and

i n

our r e s p e c t f u l

submission t o come

t o t h e c o u r t now

and

say - wel l ,

d o n ' t e n t e r t a i n t h i s motion

t o

a t t a c k competency

a t t h i s point . because

r e a l l y I

20 n o t want t o be heard t o argue completely.;:

, a u s t

p o i n t

t h a t

i s raised

about

t h e

o r d e r

kor c o s t s - I want

t o argue another p o i n t which

i s t h a t I

w a s given

c o n d i t i o n a l o rde r

i n a

sense -uponmegiving

undertakings

t o t h e c o u r t ,

t h e

c o u r t w i l l make

no o r d e r ,

but

i n some myster ious

way

t h a t o rde r n o t being made

is t o be without

p r e j u d i c e andmy

r i g h t t o appeal

t h e o r d e r t h a t does

n o t

e x i s t .

1t.b nansense and an absurd situation

even a s my

learned f r i e n d s t a t e s it.

A t one s t a g e

he s a i d ,

he wants t o go back t o t h e judge

i n o r d e r

t o r e c t i f y

t h e

o r d e r

f o r c o s t s . - - I t - sho t t ld have

s a i d t h a t upon those undertakings

being given,

then

t h e a p p l i c a t i o n

s t ands dismissed

w e l l ,

s o

be it - r e c t i f y it i n t h a t way.

can ha rd ly

appeal

f o r t h e d i s m i s s a l of

our

a p p l i c a t i o n .

woi~ld have	s a i d t h a t i s simply another	competency
p o i n t .

So h i s appl : icat ion,

i n our

r e s p e c t f u l

submission

a s a

m a t t e r

d iscre t . ion ,

your

Honours

ought

not

t o e n t e r t a i n

but

i f your Honours

a r e ngaf n s t

me	on t h a t , I do not. want t o e x p a t i a t e on it, i f

your Honours

a r e a g a i n s t m e on

t h a t ,

then my

l ea rned f r i e n d ' s c l i e n t s w i l l pay

t h e

c o s t s

f o r

t h e a p p l i c a t i o n ,

because

t h e r e is

. .

appeal i n t h i s c o u r t which on any view,

even on

h i s own

a p p l i c a t i o n ,

r e q u i r e s

some

surGery

i n o rde r

t o g e t it i n t o t h e form t h a t tie wants t o have it

i n ,

i n order t o defend it a g a i n s t a motion

f o r

compc?tency,

and t h e r e s u l t i s t h a t we

have wasted

f i r c o 2.2.81

46a

DR PANNAM

(Contin~zea

on page 4 7 )

and the court has wasted this. afternoon on hearing

opened, without having to substantially report

it but .objection to competency which my learned

friend does not now to have argued, because he

wants to go somewhere else to persuade a judge

that an order thak he agreed was in the farm that

it should be made, should not have been in that

form at all.

Now that is simply treating the court and treating

parties in the court to the kind of disregard

that would ba reflecte6.b~

the court's atkitade

if -.he proceeds in this application that his clients

would pay the costs of the present motion thus far,

I do not desire to address the court any further.

SWEENEY J: Thank you, Dr Pannam. Do you wish toladd anything

in reply Mr Moshinsky?

MR MOSHBNSKY: KO, your Honour.

SWEENEY 3:

Gentlemen, we propose to give this matter

a little consideration over night, The question

of counsel's convenience may arise. Would you be

in a position perhaps at 12 coon - - -

DR PANNAM: Not inconvenienc,ed.,.your

Honour.

SWEEMEY J:

X will adfourn the further hearing of this matter

until tomorrow at 12 noon. The court will now

adjourn .

4 -1.0

PM THE MATTER WAS ADJOURNED

UNTIL TUESDAY, 3 FEBRUAP,Y 1981

firco 2,2.81

t16 3 dn

[1981] FCA 292

2 Jan 1981