Gambotto & Anor v Euro-Nevada Mining Corporation Ltd

[1995] HCATrans 75

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S40 of 1995

B e t w e e n -

GIANCARLO GAMBOTTO and ELIANA SANDRI

Applicants

and

EURO-NEVADA MINING CORPORATION LIMITED

Respondent

Application pursuant to Order 9 Sub‑rule 7(2) of the High Court Rules

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 APRIL 1995, AT 12.05 PM

Copyright in the High Court of Australia

HIS HONOUR:    Yes, Mr Gambotto?  Come up to the Bar table.

MR G. GAMBOTTO:   Thank you, your Honour.  I apologise for appearing in my jungle greens before your Honour.  I was not really quite sure as to what would happen.

HIS HONOUR:   Yes.  I have read your application but I cannot see any ground for making the order that you seek.  This rule is directed to the case where a party has entered into a contract and through an agent.  It commences:

Where a contract has been entered into within the Commonwealth by or through an agent -

then you may, with leave, serve the process on the agent.  But your whole case is that you have no contract with these people.

MR GAMBOTTO:   Respectfully, your Honour, I submit that these people did enter into a contract by serving on the plaintiffs Form 602A under the Corporations Law.

HIS HONOUR:   That is not a contract.  They were exercising a statutory power; exercising a right.  Certainly, there has been no contract entered into with you.  If they are right, there has been a compulsory acquisition;  if you are right, there has been nothing, but there certainly has not been a contract.

MR GAMBOTTO:   Your Honour, I apologise to the Court for - - -

HIS HONOUR:   It is not a matter of apology.  I understand.

MR GAMBOTTO:   The only other alternative that I can suggest to your Honour is that I be allowed or directed to serve Mr Pliner as the attorney, not in law, for the company because of his own admission that he is such an attorney.

HIS HONOUR:   That is not a sufficient ground for doing away with serving on the particular - it may be that he will accept service on behalf of the company.

MR GAMBOTTO:   The last time I contacted Mr Pliner this morning or, I tried to speak to Mr Pliner by telephone or to his secretary, I was once again told that they were ambulating away from their desk.

HIS HONOUR:   I can only suggest to you that you try and contact Baker & McKenzie; see if they will accept service.  But another matter that you will have to give attention to is that, surely, the company itself should be a party to this litigation.  After all, you are seeking to get orders concerning the shares in the company, Little River, and surely they have got to be a party to the litigation.

MR GAMBOTTO:   Well, I would not have thought so, your Honour, although I say so as a layman.  The share holding in Little River by both plaintiffs has not been in any way interfered with by Little River.

HIS HONOUR:   But if the other side are right then, automatically, there will be a transfer of the shares from you to Euro-Nevada.

MR GAMBOTTO:   Yes.

HIS HONOUR:   Then if you want to get the register rectified in some way or in the way that you propose to do so, the company will have to be made a party.  I have never heard of a case concerning the registration of shares where the company was not a party.  The first thing that one seeks is to rectify the register against the company.  So, that is some relief that you will need in this case.

MR GAMBOTTO:   I thank your Honour for your Honour’s advice in the matter but at this point of time, your Honour, I see the matter as simply being a matter between the offeror, Euro-Nevada, and the plaintiffs.  The offerors allegedly have served the second plaintiff with a Form 602A.

HIS HONOUR:   I understand the way you put it and it may be that if you succeed then you will have to take action against Little River if they will not act in accordance with it but, on the other hand, you may be met with an objection of parties.  But I am not here to advise you.  I was just pointing out what seemed to me to be a difficulty.  All I can suggest to you, Mr Gambotto, is that you ask Baker & McKenzie to accept service, otherwise you will just have to serve them in the ordinary course of business.  You will probably find that they will accept service.

MR GAMBOTTO:   Well, I did ask, the first time I saw them - - -

HIS HONOUR:   I know.  Tell them what you are doing.  Tell them that you want this matter finalised, you want to take out process and you want them to accept services.  They will have to get some instructions from their client - - -

MR GAMBOTTO:   Which I was assured had been done.

HIS HONOUR:   Yes.  That is all I can suggest to you at this stage, you do that, and if they refuse to accept service then you will just have to serve this company in the ordinary way.

MR GAMBOTTO:   Under rule 10.  Your Honour, if I may just take your Honour back to what your Honour said a few seconds ago in so far as the writ and statement of claim?

HIS HONOUR:   Yes.

MR GAMBOTTO:   I know it is not before your Honour but it is part of the allegations put by the plaintiffs before this Court in the statement of claim that the Form 602A has not been properly prepared and served on the second plaintiff because of the fact that the Corporations Law - I think it is - if your Honour has the statement of claim before your Honour - part of the grounds and, namely, the second ground.

HIS HONOUR:   Yes.

MR GAMBOTTO:   The Form 602A has been signed by Mr Pliner as an attorney - acting under a power of attorney, one takes it - and the Corporations Law does not include an attorney as being enabled to sign a Form 602A, and I am not referring to the particular section but I am referring to the second part of the Act where the forms are detailed.

HIS HONOUR:   Yes.  Well, in certain circumstances - in most circumstances people can act through an attorney.  It does not have to be a lawyer.  They can act through an agent.  Anyway, they are matters for another day.

MR GAMBOTTO:   Now, why I said that to your Honour - and, again, I apologise if I said the wrong thing - is that if and when this allegation will be put to the Court on the part of the plaintiffs, one would reasonably expect to find the defendant to allege that the Form 602A was properly prepared and sealed because of the fact that there is a power of attorney afloat somewhere.  I put this argument to your Honour in respect of this summons this morning - this afternoon - in the way that seeing that an attorney acting under power of attorney - and I am sorry there is a bit of a misleading situation there with attorneys at law and attorneys acting under power of attorney - if such an attorney, not being an attorney at law, is empowered as an alter ego to sign a Form 602A, once again I respectfully submit to your Honour that I should, even forgetting the application before

your Honour under Order 9 subrules 7(1) and (2), I respectfully submit to your Honour that I have got an alter ego for the company in this country and I should be able to serve the alter ego as serving the company.

However, because of the fact that the alter ego has never admitted to me that he is an alter ego, that he has only admitted to me that he is an attorney at law for the company and he avoids me in so far as my seeking him out to get an answer from him one way or the other, I respectfully submit that my only recourse as I saw it was to bother your Honour this morning and come before your Honour.

McHUGH J:   Mr Gambotto, if he is in fact the company in this country and you serve him, it can be argued then whether or not he is.  If he is not, then your service will be defective.  Your other alternative is to invoke Order 10.  But in my view, you have no grounds for invoking Order 9 rule 7 and accordingly, I must refuse the application you make.

Accordingly, the summons is dismissed.

MR GAMBOTTO:   Thank you.

AT 12.16 PM THE MATTER WAS CONCLUDED