Foots v Southern Cross Mine Management Pty Ltd & Ors

[2006] HCATrans 720

[2006] HCATrans 720

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B47 of 2006

B e t w e e n -

KENNETH JOHN FOOTS

Applicant

and

SOUTHERN CROSS MINE MANAGEMENT PTY LTD

First Respondent

ENSHAM RESOURCES PTY LTD

Second Respondent

BLIGH COAL LIMITED

Third Respondent

IDEMITSU QUEENSLAND PTY LTD

Fourth Respondent

EPDC (AUSTRALIA) PTY LTD

Fifth Respondent

LG INTERNATIONAL (AUSTRALIA) PTY LTD

Sixth Respondent

FOOTS PTY LTD

Seventh Respondent

LITTLE DIGGER MINING LIMITED

Eighth Respondent

NORMA AGNES FOOTS

Ninth Respondent

KENNETH JOSEPH HILL

Tenth Respondent

Directions

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 22 DECEMBER 2006, AT 11.20 AM

Copyright in the High Court of Australia

__________________

MR P.J. DUNNING, SC:   May it please the Court, I appear with my learned friend, MR S.J. WILLIAMS, for the applicant for leave and the applicant on this application.  (instructed by Conroy & Associates)

HIS HONOUR:   Yes.  There is nobody else been served?

MR DUNNING:   No, there is nobody else been served.

HIS HONOUR:   Mr Dunning, why have you not served at least the party you say has an interest in the matter?

MR DUNNING:   Because, your Honour, in our submission, the correct view is that the respondent, who was always to be a respondent to the application, does not have an interest in whether anybody else is going to be a respondent or not.

HIS HONOUR:   I do not know that.  I mean, I do not know that at all.  I really do not think you should be here without at least the party you concede is the party who should be served.  I really need to hear from that party.  I have to tell you that we have a very strong view, most of the Judges of the Court, that if parties are named – because we cannot predict the outcome and it often happens that people are affected somewhat unpredictably because of our orders ‑ ‑ ‑

MR DUNNING:   I appreciate the concern that your Honour raises.  This is a peculiarity, as I understand it, of the manner in which the Court of Appeal in Queensland styles its heading.

HIS HONOUR:   Yes, we have encountered that before.

MR DUNNING:   If I can perhaps just illustrate to your Honour that, though having heard the force of what your Honour has said, in the material that was filed, could I just direct your Honour’s attention to the judgment in the court below.

HIS HONOUR:   Yes.

MR DUNNING:   Your Honour will see that in the Court of Appeal they adopt the court heading of the primary court.

HIS HONOUR:   Of the heading in the action.

MR DUNNING:   That is right, and then they denote those parties who are in fact parties in the Court of Appeal.  So your Honour will see that it says between Southern Cross Mine Management, plaintiff, and then under that “not a party to appeal”.  Then you will see there is the first defendant, Ensham Resources, and it is designated as respondent in that court.  Then when one goes down to Kenneth John Foots, he is designated as appellant and everybody else is designated as not a party to the appeal.

HIS HONOUR:   Well, that is not how it is on mine.  I have the judgment and it has plaintiff.

MR DUNNING:   Sorry, is it the order of the court, your Honour?

HIS HONOUR:   No, it is not the order.  I was looking at the judgment.

MR DUNNING:   Sorry, it should be the first document in the bundle of material filed after the application for leave itself.

HIS HONOUR:   Yes, I see that.

MR DUNNING:   So we would say…..the only parties who were parties in the court below are the appellant and the respondent.  That returns me to the question your Honour raises and the matter we considered before coming without serving Ensham.  It is difficult to see how Ensham have an interest on any view ‑ ‑ ‑

HIS HONOUR:   You tell me that and no doubt that is the view and it is probably the correct view, but we just do not know that.  I am not going to get into the case at this stage, Mr Dunning, I could not.

MR DUNNING:   I appreciate ‑ ‑ ‑

HIS HONOUR:   All of these people who are named were parties to the action, is that correct?

MR DUNNING:   At first instance, yes, and none of them were parties in the Court of Appeal.

HIS HONOUR:   Well, that means you chose not to serve them in the Court of Appeal; is that right?

MR DUNNING:    No, we ‑ ‑ ‑

HIS HONOUR:   And nobody suggested in the Court of Appeal that they should have been served or should have been there, I take it.

MR DUNNING:   No, we chose not to appeal against them.  It arises because under the Uniform Civil Procedure Rules rule 747 requires that you bring proceedings in the prescribed form and the prescribed form requires you to recite the court heading below and then nominate who is to be the respondent, talking from the point of view of the appellant.  So none of those parties are parties to the appeal, as is made apparent both by the judgment of the court and also the notice of appeal in the Court of Appeal, which is in the material filed in the special leave application.

HIS HONOUR:   Mr Dunning, a lot of the parties are related parties, are they not?

MR DUNNING:   They are indeed, yes, your Honour.

HIS HONOUR:   I do not put that in the technical sense.  There are obviously the Foots’ interests. 

MR DUNNING:   Then there are what might be called the Japanese mining interests.  Then there are some others, like there is a Mr Hill and Southern Cross, which is now in external administration.

HIS HONOUR:   Do they all have registered offices in Queensland, the corporations, the companies?

MR DUNNING:   They will have, your Honour, yes.  It is a feature of the Rules that we say would be consistent with our construction of it that ‑ ‑ ‑

HIS HONOUR:   No doubt your construction of the Queensland rule is correct, but not just myself but the Registry staff in the High Court are very sensitive to this because we have had this before.  What often happens after the final court of appeal has had an opportunity to look at everything in an advantageous way simply because there is so much that has gone before, we have found on a few occasions that somebody could be affected by the order and it often is something that is only teased out in argument.  So I have to tell you I am disinclined to make any order.  You assert in your affidavit that it is difficult and inconvenient to serve people, but there is no indication why that is so.  They all have registered offices.  A lot of them are local.

MR DUNNING:   Your Honour, I cannot say that it is beyond us, by any stretch of the imagination.  Indeed, it was rather hoped that it might be an application that would obviate a particular difficulty that arises in relation to special leave applications coming from the Queensland Court of Appeal because the consequence of ‑ ‑ ‑

HIS HONOUR:   Well, they might have to bring their Rules into line with ours, Mr Dunning.  We are the final court of appeal for Australia.

MR DUNNING:   Well, with respect, we would submit that when one looks at rule 41.01.1 it says that you must serve a party who was a party in the court below and the appropriate place to look is the formal judgment.

HIS HONOUR:   The last stop you say.

MR DUNNING:   Yes.

HIS HONOUR:   That may be so, but as far as I am concerned these parties – I am really not prepared to make the order, I am sorry, Mr Dunning.

MR DUNNING:   I appreciate that, your Honour.

HIS HONOUR:   Look, you may well be right but ‑ ‑ ‑

MR DUNNING:   In light of your Honour’s intimation, I suspect we would be reluctant to put Ensham to the costs of – because ultimately it is a matter of practice and procedure and if the Court says, “As a matter of practice and procedure we want every party who is named”, whether they were in the Court of Appeal or not, it is obviously a matter within the province of the Court to ‑ ‑ ‑

HIS HONOUR:   I am not prepared to make an order that you be exempted from serving any of the people who are named in the original proceedings and whose names are on the judgment in the Court of Appeal.  The reason why is because experience has shown, perhaps very rarely, that occasionally the High Court’s orders can affect, perhaps only indirectly, but it can sometimes affect other people, Mr Dunning, and there does not seem to be any serious difficulty about serving anybody anyway.

MR DUNNING:   Your Honour, we are not saying it is an insurmountable problem by any means.  It is productive of difficulties with filing documents undoubtedly because ‑ ‑ ‑

HIS HONOUR:   One would hope that those people would make it clear when they are served that they have no interest in the matter and no doubt when you serve them you would make it clear that you will not be seeking any relief against any of them and there would be no occasion for them to appear.

MR DUNNING:   Yes.

HIS HONOUR:   If in fact there are difficulties further on as a result of serving them, then you can reapply to me, so that you would not have to – what do you have to serve under the Rules apart from the application for special leave at this stage?

MR DUNNING:   Those documents that are filed in this Court in support of it.  So that is the formal judgment of the Court of Appeal, the reasons for judgment in that court, the formal judgment at first instance, the reasons for judgment at first instance and the notice of appeal in the Court of Appeal.

HIS HONOUR:   I suppose what I could do, I could make an order dispensing for the time being with service of anything except the application for special leave to appeal and the proposed notice of appeal.  I could make an order that they be served with those.

MR DUNNING:   Your Honour, I think the Rules now operate so that the proposed notice of appeal comes with the summary of argument.

HIS HONOUR:   I was having in mind to save you the problem of that.

MR DUNNING:   I appreciate what your Honour says.

HIS HONOUR:   At this stage, apart from the party you say is the party against whom you will be seeking relief, apart from that party, I make an order – I make no orders with respect to that party ‑ ‑ ‑

MR DUNNING:   I appreciate that.

HIS HONOUR:   ‑ ‑ ‑ making it clear that the Rules have to be fully complied with so far as that party is concerned.

MR DUNNING:   Indeed, they have been.  I can tell you they have already been served.

HIS HONOUR:   Yes.  With respect to the other parties, I would make an order requiring you at this stage to serve only the application for special leave and the proposed notice of appeal together with a clear statement that it is not proposed to seek any relief of any kind in these proceedings, if special leave be granted, against those parties, those other persons.

MR DUNNING:   Certainly.

HIS HONOUR:   Perhaps you should also say in the accompanying letter or accompanying notification that if the party actually served with that reduced material wishes to participate in or be heard, then it is a matter for that party, in which event on that party’s notifying you accordingly you will undertake to serve upon them all relevant materials in full compliance with the Rules.

MR DUNNING:   Certainly, your Honour.

HIS HONOUR:   Is that clear?

MR DUNNING:   That is clear and that would bring it largely in conformity with what you have to do with the Registrar of the Supreme Court.  You do not have to serve the Registrar of the Court of Appeal with the draft notice of appeal, but I understand exactly what your Honour says.  Could we seek an additional direction from your Honour that service of those parties can be effected by service on their address for service in the trial division?

HIS HONOUR:   That is the only address you would have, is it not?

MR DUNNING:   I think that is right, because the Rules themselves contemplate that you serve on the address for service in the Court of Appeal, but of course there will not be an address for service in the Court of Appeal in respect of those ‑ ‑ ‑

HIS HONOUR:   That is all you can do.

MR DUNNING:   I think that is right.  We could go and find their registered offices.

HIS HONOUR:   I will make a direction that before certifying before the application for special leave may be heard, however, you should file an affidavit of service in accordance with my order today.

MR DUNNING:   Very good, your Honour.

HIS HONOUR:   So that if there have been any problems about serving any particular person, no doubt that will be apparent from your affidavit.

MR DUNNING:   We have an affidavit swearing to the service on Ensham of the application for special leave.  There is a practical difficulty.  It is due to be filed sometime next week, or perhaps the week after.

HIS HONOUR:   But you say you have served Ensham?

MR DUNNING:   We have served it, yes.

HIS HONOUR:   And, what, you want an extension of time within which to file the affidavit of service upon Ensham?

MR DUNNING:   I would be happy to even file it now, but I suspect your Honour’s response to offering to file ‑ ‑ ‑

HIS HONOUR:   I do not have the Registry stamp.

MR DUNNING:   ‑ ‑ ‑ offering to file an affidavit of service.

HIS HONOUR:   Why do I not make an order that you have leave to file the affidavit of service upon Ensham by 5 January?  I do not know what day of the week is 5 January.  Does anybody know?

MR DUNNING:   Mr Conroy wondered whether 12 January would be ‑ ‑ ‑

HIS HONOUR:   I am always willing to oblige Mr Conroy – 12 January.

MR DUNNING:   Your Honour, would that also be the date by which we file our affidavit of service in respect of the truncated service of the ‑ ‑ ‑

HIS HONOUR:   Yes.

MR DUNNING:   Very good, your Honour.  I do not know how quickly the Court will produce its formal order, but if Mr Conroy swears that ‑ ‑ ‑

HIS HONOUR:   Fairly quickly because I am going to ask you to draw it up for my approval.

MR DUNNING:   Very good, your Honour.

HIS HONOUR:   That means that it has to be drawn up by half past 2 this afternoon.

MR DUNNING:   Very good, your Honour, yes.

HIS HONOUR:   All right?

MR DUNNING:   Yes, that is all right.

HIS HONOUR:   Nothing further then?

MR DUNNING:   Your Honour, I do not believe there is.  There are only two possible costs orders.  One is no order as to costs.  The other is that they are costs in the proceedings.

HIS HONOUR:   I would not make an order as to costs.

MR DUNNING:   Very good.  We will formally record that in the order, your Honour.

HIS HONOUR:   All right.  Well, happy Christmas to you all.

MR DUNNING:   Yes, your Honour, and on behalf of all at the Bar table we express our appreciation to your Honour and the Court staff for hearing us on such short notice.

HIS HONOUR:   Mr Dunning, when I was at the Bar on vacation I can well remember some judges who were very difficult to track down.  I always resolved that I would never be that way.

MR DUNNING:   Well, you have stuck to your resolution, your Honour.

HIS HONOUR:   Close the Court, thank you.

AT 11.37 AM THE MATTER WAS CONCLUDED