Forge & Ors v Australian Securities and Investments Commission & Ors

[2005] HCATrans 677

[2005] HCATrans 677

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry  No C7 of 2005

B e t w e e n -

WILLIAM ARTHUR FORGE

First Plaintiff

JOZSEF ENDRESZ

Second Plaintiff

DAWN MAY ENDRESZ

Third Plaintiff

ALLAN PAUL ENDRESZ

Fourth Plaintiff

BISOYA PTY LIMITED

Fifth Plaintiff

and

AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION

First Defendant

THE STATE OF NEW SOUTH WALES

Second Defendant

THE COMMONWEALTH OF AUSTRALIA

Third Defendant

Office of the Registry  No C12 of 2005

B e t w e e n -

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Plaintiff

and

WILLIAM ARTHUR FORGE

First Defendant

JOZSEF ENDRESZ

Second Defendant

DAWN MAY ENDRESZ

Third Defendant

ALLAN PAUL ENDRESZ

Fourth Defendant

KAMANGA HOLDINGS PTY LIMITED

Fifth Defendant

BISOYA PTY LIMITED

Sixth Defendant

Office of the Registry
  Sydney  No S301 of 2005

B e t w e e n -

WILLIAM ARTHUR FORGE

First Applicant

JOZSEF ENDRESZ

Second Applicant

DAWN MAY ENDRESZ

Third Applicant

ALLAN PAUL ENDRESZ

Fourth Applicant

BISOYA PTY LIMITED

Fifth Applicant

and

AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION

Respondent

For directions

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN AND PERTH BY VIDEO LINK TO CANBERRA

ON MONDAY, 5 SEPTEMBER 2005, AT 2.15 PM

Copyright in the High Court of Australia

__________________

MR J.L. GLISSAN, QC:   I appear for the Forge interests in all those matters, if your Honour pleases.  (instructed by Ken Cush & Associates)

MR M.R. PEARCE:   Your Honour, I appear for ASIC in the three matters.  (instructed by Australian Securities and Investments Commission)

MR J.G. RENWICK:   May it please the Court, I appear for the second defendant in C7 of 2005 only, the State of New South Wales.  (instructed by Crown Solicitor for New South Wales)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia:If the Court pleases, I appear with my learned friend, MS R.M. DOYLE, for the Commonwealth, which is the third defendant in C7 of 2005.  I intervene as of right in the cause removed and I claim to intervene as of right, but in any event seek leave to intervene to avoid any issue, in the special leave application.  (instructed by Australian Government Solicitor)

HIS HONOUR:   That is the special leave application?

MR BENNETT:   Yes, your Honour.  Perhaps I should start by saying I seek leave to intervene ‑ ‑ ‑

HIS HONOUR:   Was that opposed?

MR GLISSAN:   No, your Honour.

MR BENNETT:   Then I do not need to have the argument about intervention as of right.

HIS HONOUR:   Yes, exactly.

MS P.M. TATE, SC, Solicitor‑General for the State of Victoria:   May it please the Court, I appear for the Attorney-General for the State of Victoria in the proceedings in the original jurisdiction of the Court, C7 of 2005, in the cause removed before the Court, C12 of 2005.  Your Honour, we do not seek leave to intervene in the special leave application but, rather, we seek to intervene if special leave were to be granted in the proceeding which is currently S301 of 2005.  (instructed by Victorian Government Solicitor)

HIS HONOUR:   The problem might be, Ms Solicitor, the Full Court might not rule on the special leave application and just might go ahead and hear full argument.  I think you had better put yourself on the same foundation as ‑ ‑ ‑

MS TATE:   Perhaps I could put myself on the same foundation as the Commonwealth Solicitor‑General, that it is only an application for leave to intervene in those proceedings, your Honour.

HIS HONOUR:   Yes, thank you.  You have that leave insofar as it is necessary.

MS TATE:   Thank you, your Honour.

MR T.I. PAULING, Solicitor‑General for the Northern Territory:   If your Honour pleases, I appear with, MS S.L. BROWNHILL, for the Attorney-General for the Northern Territory, intervening in the proceedings C7 of 2005 in the original jurisdiction and in C12 of 2005 in the cause removed and similarly to the Commonwealth and Victoria we would seek leave to intervene if special leave is granted in S301 of 2005.  (instructed by Solicitor for the Northern Territory)

MR R.J. MEADOWS, QC, Solicitor‑General for the State of Western Australia:   May it please your Honour, I appear with my learned friend, MS J.C. PRITCHARD, on behalf of the Attorney‑General for Western Australia and South Australia and we would seek to intervene on the same footing as my learned the Solicitor‑General for Victoria.  (instructed by State Solicitor’s Office and Crown Solicitor’s Office South Australia)

HIS HONOUR:   Now, Mr Glissan, there was some problem about the inclusion of one of the corporate parties in the record in the Supreme Court of New South Wales.  Has that been cleared up?

MR GLISSAN:   Yes, as I understand it, your Honour, documents have been filed.

HIS HONOUR:   It has not come through to us yet.

MR GLISSAN:   In which case I am not in a position ‑ ‑ ‑

HIS HONOUR:   The Supreme Court of New South Wales there is a letter from Mr Cush of 2 September.

MR GLISSAN:   That is in relation to Kamanga, as I understand it, your Honour.  I understand from my instructing solicitor that those documents were filed on Friday.  I cannot take the matter any further than that, I am sorry.

HIS HONOUR:   Well, that had better be followed up.

MR GLISSAN:   Indeed, your Honour.

HIS HONOUR:   Mr Cush can liaise with Ms Harris.  There is a defence of the third defendant in C7 of 2005, which is ASIC, which I think has been filed today.

MR PEARCE:   It is not ASIC, your Honour.  I think it is the Attorney‑General.

HIS HONOUR:   You are quite right, I am sorry, the Commonwealth, actually.  I take it that all of the interveners are supporting validity of the New South Wales legislation in its application in this case?

MS TATE:   Yes, Victoria is supporting the validity of that legislation, your Honour.

MR PAULING:   So, too, the Northern Territory.

MR MEADOWS:   Likewise, South Australia and Western Australia, your Honour.

HIS HONOUR:   So you have no supporters at all, Mr Glissan.

MR GLISSAN:   Your Honour, it is a lonely road.  We had hopes of the Solicitor‑General for the Commonwealth at one stage, your Honour.

HIS HONOUR:   Now, the draft index should now go ahead, should it not, including all the process in the one book for the Full Court?  Item 7 on page 1, the defence of the third defendant, has now been met today.  The case is a matter requiring seven Justices, I would think, and the Court proposes to deal with it as soon as possible in the February sittings.

MR GLISSAN:   That is of real assistance to us, your Honour.

HIS HONOUR:   What I wish to do today though is to have an outline for the preparation of submissions so that the submissions are all in November/December, so that there is nothing more to be done during January, to be realistic about it.  I guess you have to go first ‑ ‑ ‑

MR GLISSAN:   We would have proposed our submissions to be filed by mid‑November if that is convenient.

HIS HONOUR:   Yes.  Would that give the other parties long enough?  There has to be a reply, do not forget.

MR BENNETT:   Your Honour, if they are by the middle of November, perhaps we could be by the middle of December, which is the beginning of vacation or thereabouts.

HIS HONOUR:   But then there has to be a reply, you see.  I think you had better go on a bit earlier, Mr Glissan.

MR BENNETT:   Twenty-one days, your Honour.

HIS HONOUR:   Yes.  I will say the submissions for the Forge interests – will that cope with it?

MR GLISSAN:   Yes.

HIS HONOUR:   Submissions for the Forge interests be filed and served on or before 11 November.  Submissions for the opposing parties, including interveners, filed and served on or before 2 December.  Any reply on or before 16 December.

MR GLISSAN:   If your Honour please.

HIS HONOUR:   The matters will be heard together and set down for the February sittings.  I cannot give you a precise date yet, but if you liaise with the Registrar that will become clear.

MR GLISSAN:   There were two matters in relation to the index, if I might raise them with your Honour.

HIS HONOUR:   Yes.

MR GLISSAN:   One was the inclusion of the commissions of Mr Justice Foster.

HIS HONOUR:   Yes, that is right.  The State was going to provide them at one stage.

MR GLISSAN:   I understand from my learned friend, Mr Renwick, that he has those here and available.

HIS HONOUR:   Yes, they should be included in the book.

MR RENWICK:   Yes, I have them.  Would your Honour wish me to file them now?

HIS HONOUR:   Yes, if you hand them up.

MR RENWICK:   Yes, certainly, your Honour.

MR GLISSAN:   The other, your Honour, was ASIC thought it appropriate, and we agree, that another interlocutory judgment of Justice Foster, in relation to the matter also, should be included in the documents that the Court considered.  Perhaps Mr Pearce can indicate that.

MR PEARCE:   That is so, your Honour.  It is the judgment of 12 March 2002 which was the first instance decision on the transitional provisions, that matter not covered in the later reasons. 

HIS HONOUR:   That had better be in as well, I think.

MR PEARCE:   Yes, your Honour.

HIS HONOUR:   All right.  There is a commission of 19 April 2000 of Acting Justice Foster, another one of 2 May 2001 and another one on 1 May 2002.  Do they cover a continuous period together?

MR GLISSAN:   Yes, your Honour.

HIS HONOUR:   Yes, that seems to be so.  Thank you, Mr Renwick.  They can be included in the book too.

MR BENNETT:   There is one minor matter about the index, your Honour.  Item 12, the date should be 28 August 2002 rather than 28 February 2002.  It is the same date as the reasons.

HIS HONOUR:   Yes, indeed. 

MR BENNETT:   The other matter, your Honour, is the question whether there should be an order today that the special leave application be heard at the same time as the hearing of the appeal, a specific order.

HIS HONOUR:   Yes, I think there should be.

MR BENNETT:   Yes, if your Honour pleases.

HIS HONOUR:   The special leave application is S301.

MR GLISSAN:   Your Honour, arising out of that it would be our application that the requirements of rule 41 in relation to summary of argument in the special leave application be dispensed with since the same ground is to be traversed and the matters are to be heard together.

HIS HONOUR:   Yes, I would expect the one submission is to cope with all contingencies.

MR GLISSAN:   One way or another, your Honour, yes.

HIS HONOUR:   And then, so far as you need any dispensation to achieve just the one set of submissions on your side, that you have that.  That goes for the submissions in response to the special leave application.  They will be caught up in what is coming forward from the parties.

MR GLISSAN:   Yes.

MR BENNETT:   I apologise, your Honour, there is one other matter I did not mention.

HIS HONOUR:   Yes, Mr Solicitor.

MR BENNETT:   That is this.  There was some discussion on the prior occasion to the effect that one of the advantages of a special leave application was that it might render unnecessary the various procedural arguments about the permissibility of the removal and the extent to which the removal would allow the questions to be raised.

HIS HONOUR:   That is right.

MR BENNETT:   And the same in relation to the original jurisdiction proceedings. 

HIS HONOUR:   Yes.

MR BENNETT:   For that desirable result to occur, two things would have to happen.  One would be for the Court, at the beginning or early in the hearing, to say ‑ ‑ ‑

HIS HONOUR:   To rule first.

MR BENNETT:    ‑ ‑ ‑ to say special leave is granted and the other is for the appellant to indicate that if that were so it would abandon the other two sets of proceedings and not seek to proceed with them.  Unless all parties can have some indication from the Court and from my learned friends in advance that those two things will occur, the work will have to be done on those issues.  My question is, perhaps partly to your Honour and partly through your Honour to my learned friends, whether that happy objective can be achieved.

HIS HONOUR:   Yes, Mr Glissan.  If you got special leave ‑ ‑ ‑

MR GLISSAN:   I understand my learned friend’s point.

HIS HONOUR:    ‑ ‑ ‑ at the outset of the hearing the other proceedings could fall away, I suppose.

MR GLISSAN:   Yes, I think that is right.  That must necessarily follow.  If we were, however, not to obtain special leave, the others would remain on foot and I think I can reassure the Solicitor-General as to that.

HIS HONOUR:   I think we are seized of the situation, Mr Solicitor.  I need not make any order about them, I do not think.

MR GLISSAN:   Your Honour, the only other thing is whether or not there should be a summons for directions filed in relation to the Commonwealth’s demurrer.  I think that New South Wales has also filed a demurrer, or ASIC, I am sorry, under rule 27 and we again ‑ ‑ ‑

HIS HONOUR:   I do not think so. 

MR GLISSAN:   No, well that would be the position that we espouse. 

HIS HONOUR:   I will dispense with that if it has to be dispensed with, as well.

MR GLISSAN:   Very good.  If your Honour please.

HIS HONOUR:   So I will make the following orders:

1.        Submissions for the Forge interests to be filed and served on or before 11 November;

2.        Submissions for the opposing parties, including the interveners, filed and served on or before 2 December;

3.        Any reply by the Forge interests on or before 16 December.

4.        The special leave application S301 of 2005 will be heard together with the other two proceedings, C7 and C12 of 2005 and any necessary dispensations under the Rules are made to enable that to happen;

5.        Costs of today will be costs in the two proceedings and the special leave application.

I note what has been said as to the consequences that would follow if the Court were minded to grant special leave at the outset of the hearing and thereby obviate the necessity to pursue the other two applications to finality.

There is no need for any special order, is there, about the length of written submissions?  It is not that sort of case, I do not think, that attracts too much verbosity.

MR BENNETT:   No.  There are a number of issues and I suppose there is the question then as to whether the submissions would need to cover the procedural points.

HIS HONOUR:   Yes, I think they would.  It would be fairly succinct.

MR BENNETT:   Yes.

HIS HONOUR:   I do not think so.

MR BENNETT:   I do not think it is necessary, your Honour.

HIS HONOUR:   So costs of the proceedings today will be costs in the two proceedings and the special leave application.

Very well, I will take a short adjournment.

AT 2.33 PM THE MATTERS WERE CONCLUDED