Foody v Horewood & Ors

[2008] HCATrans 4

[2008] HCATrans 004

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M77 of 2007

B e t w e e n -

ANDREW EMMETT FOODY

Applicant

and

TIMOTHY HOREWOOD

First Respondent

EDWARD HORE

Second Respondent

MUSASHI PTY LTD

Third Respondent

Application for reinstatement

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 24 JANUARY 2008, AT 11.42 AM

Copyright in the High Court of Australia

MR A.E. FOODY appeared in person.

MR B.H. WYATT:   If it please the Court, I appear for the respondents.  (instructed by Rigby Cooke Lawyers)

HIS HONOUR:   Yes, Mr Foody.  You appear on your own account, do you?

MR FOODY:   Yes, I do, your Honour.

HIS HONOUR:   Yes.  Mr Wyatt, you are appearing for all of the respondents, are you?

MR WYATT:   Yes, sir.

HIS HONOUR:   Yes.  Now, Mr Foody, what is it that you would have me do today?

MR FOODY:   I seek an extension of the time for filing my draft notice of appeal and submissions in relation to the matter M77 until the determination of matter M101 which concerns the release of some press documents which was the reason we had our first extension back in midyear.

HIS HONOUR:   I recall that extension.  That went until September and September is now long since gone.  Why should I extend time to depend upon the other proceeding?  Your complaint is that you could not see these documents in the Court of Appeal, is that right, or in the courts below?

MR FOODY:   In any shape or form.

HIS HONOUR:   Yes.  Your central complaint is “I have been shut out from looking at these documents”, is that right?  Do I understand it?

MR FOODY:   Yes, your Honour, but ‑ ‑ ‑

HIS HONOUR:   Why will now looking at them help you to demonstrate that an error was made below?  Either an error was made in the courts below in shutting you out or it was not.  What does their content matter?

MR FOODY:   The key issue is – I believe you wrote a paper, “Advocacy and Special Leave Applications”.  Yes, your Honour.

HIS HONOUR:   In the criminal jurisdiction it is known as reading up your priors.  Yes, go on.

MR FOODY:   Right.  In that you gave one of the basic principles in order to persuade yourself and the other justices is that counsel must know the facts of the case.

HIS HONOUR:   Yes.

MR FOODY:   All right.  The facts as I have seen them consist in the judgment alone by the appeal court.

HIS HONOUR:   Yes, and your complaint is “That is a judgment which was made without my seeing some documents” and that is a matter for complaint.  Now, that complaint might be good, it might be bad, I simply do not know, but your compliant is, “I did not see the documents”, is it not?

MR FOODY:   My complaint is that the Court of Appeal failed to act on principles that this Court has expounded relating to delay on the part of the trial judge.  That is number one.  The second point was that there was fresh evidence introduced and that evidence showed that the company was sold for four times the amount of money that I received.  I have not seen the submissions from my counsel.  Those have been denied to me.  I have not seen any of the documents that comprise part of the three volumes of documentary evidence that went before the appeal court justices and those documents shaped the decision by the three justices from the Court of Appeal. 

In the decision denying me access to those documents by Justice Ashley and Justice Chernov, they said that I could find the answers I sought from their judgment.  That seems like I am looking through a screen in order to determine what exactly happened in the court below.  I am simply asking to be put on a sound footing, the same footing that if I had engaged my former counsel, they would then have those documents on which to formulate the draft notice of appeal and the submission. 

My application is that I think I should either have an extension of time, two weeks, say, after I receive these documents or, if your Honour is not willing to do that, then allow me, say, to 4 February that I put in a draft notice of appeal and a submission but on a draft basis waiting for the outcome of the M101 release of those documents.  The release of those documents will put me at an equal playing field as if I had counsel representing me in this proceeding now.

HIS HONOUR:   Mr Foody, the jurisdiction of this Court is to make such order as the court below should have made.  Because that is the nature of the jurisdiction of this Court, we act only on the record in the court below.  We do not in this Court receive fresh evidence, new evidence, on appeal.  That, I think, some litigants find difficult to deal with, but that is the law.

MR FOODY:   I understand that.

HIS HONOUR:   That is all.  Because that is so, I do not understand why now having the documents would help you show that your complaint that the Court of Appeal denied you the documents, as you would have it, is any better or any worse than it is without you having the documents now.  That is the nub of it.

MR FOODY:   I understand, your Honour, and hypothetically you are right, but there is this grey area that neither one of us know what those documents contain.

HIS HONOUR:   Yes.  Let it be assumed that they contain within them whichever metaphor you like, smoking gun, hand grenade, we all know the metaphors.

MR FOODY:   Conclusive evidence, conclusive.

HIS HONOUR:   Let it be assumed they contain with them absolute true confession of the worst possible crime and misdemeanour against you.  Be it so, your compliant is “I had to argue this in the Court of Appeal without having the document”, is it not?

MR FOODY:   No. 

HIS HONOUR:   No?

MR FOODY:   No, your Honour.  That is tier three on the M77 complaint.  We are back here asking for an extension of time so that I can see the documents to decide for myself.  Because you have to remember the Court of Appeal had three volumes.  They mention five.  What about these other smoking possibles?  I come before you to say, should I not be on the equal footing as counsel if they had represented me in this matter to see the documents for myself, to determine whether there was a smoking gun or not.  Because when I produce my submission, I will point to those documents and say these are the documents that the Court of Appeal ignored when they prepared their judgment.  Now, I cannot make a statement like that, which is part of what an appeal to this Court would be; that the Court of Appeal did not form a decision based on all of the documents.

Say I had my submission from my senior counsel.  At least I would know from that document what went before the court, but I do not have that

either.  So I am before you trying to make an appeal where we have one aspect which is delay and the other aspect is fresh evidence and all I have to show that the fresh evidence showed that there was a great disparity between the costs or the amount paid, whereas the decision of the appeal court who, when I went back to them and asked them to release the documents, they then made a decision which I believe is personal to them.  Because the lack of release of those documents, it does not allow scrutiny of their decision.  It actually shuts me out from determining whether or not they saw all the evidence and acted upon it. 

So how would it change?  Well, for the delay aspect it would not change, but for the fresh evidence side, to glean how a company could in three years time quadruple in value, that can only be gleaned from the documents and not from a judgment that just paraphrases 10 out of, say, 750. 

HIS HONOUR:   Yes.  Is there anything else you wish to say?

MR FOODY:   No, your Honour.

HIS HONOUR:   Yes.  Now, Mr Wyatt, what do you say I should do?

MR WYATT:   What I was going to put to you, your Honour, is probably now redundant but we would ultimately be satisfied with the date 4 February 2008 as the date for Mr Foody to submit his draft notice of appeal and written case summary pursuant to rule 41.10.  I can address you in relation to one issue we had in costs, but apart from that I do not think I can add anything.

HIS HONOUR:   As to costs, if I were to further extend the time for filing a written case to 4 February and made the costs the costs in the application for special leave ‑ ‑ ‑

MR WYATT:   I was not going to raise any issue about today, but what I was going to say was that we, as a result of Mr Foody’s further summons and proceeding M101, had your order of 22 August on costs rendered somewhat nugatory because that was costs in the application as well, but we are now some four months on from there and the 22 August date really is a cost that the respondents have incurred and really, in my submission, should receive the benefit of costs incurred that day.  So I was really going to address you on those issues, not the issue today, sir.

HIS HONOUR:   What else would you want to say about that issue you have just last mentioned?

MR WYATT:   Well, sir, it seems to me that if Mr Foody had submitted  his summary and his notice of appeal on 17 September, the Court would be in a position under rule 41.10 to determine whether or not the matter go any further.  Can I just raise one issue regarding the order you made that day, your Honour, and this may have been as a result of some inconsistency put to you.  The order that you made that day required Mr Foody to file and serve the documents, whereas 41.10 is only filing ‑ ‑ ‑

HIS HONOUR:   Is just file, yes.

MR WYATT:   I was uncertain as to whether that was a matter which ‑ ‑ ‑

HIS HONOUR:   Sounds like my slip, which would not be unknown or unusual, I think, but there we are.

MR WYATT:   It is clear, I would say to the Court, that as a result of the further summons being issued on the 17th, the respondents have, in effect, now, if you like, formed a position or at least found a position to say the costs of 22 August should in fact not be reserved costs in the application, but costs in their favour.

HIS HONOUR:   Yes.  Mr Foody, I am minded to further extend the time for filing your written case to 4 February 2008.  I am not minded to recall or vary the order as to costs made last time.  The costs of today’s application will be costs in the application for special leave.  Mr Foody, let me make one thing quite plain.  The documents that are to be filed by 4 February are not, I repeat not, to be regarded by you as draft or as temporary or holding documents.  You are to treat these as your last best shot.  I do not want you to be under the slightest misapprehension about it.  I therefore employ the bluntest language I can come to, at least in this courtroom.

AT 11.54 AM THE MATTER WAS CONCLUDED