Gaye (No 1) Pty Ltd v Allan Rowlands Holdings Pty Ltd

[1992] HCATrans 370

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Darwin No D6 of 1992

B e t w e e n -

GAYE (NO. 1) PTY LTD

Respondent Appellant

and

ALLAN ROWLANDS HOLDINGS

PTY LTD

Applicant Respondent

Application to dismiss appeal

TOOHEY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 11 DECEMBER 1992, AT 10. 01 AM

Copyright in the High Court of Australia

Gaye(3) 1 11/12/92

MR G.P. BRZOSTOWSKI:  May it please the Court, I appear for

the applicant today and the respondent in the

principal appeal. (instructed by Ward Keller)

MR J.D. HARRIS:  May it please the Court, I appear for the

respondent today, Gaye (No.l) Pty Ltd, the

appellant in the proceedings. (instructed by

Stedman Cameron)

Your Honour, I have, only moments before

Your Honour came on to the bench, received a message from the Court Registry that the principal of Gaye (No 1) Pty Ltd is proceeding post haste to the Melbourne Registry of the Court with funds to

lodge in the Melbourne Registry. I appreciate that

it is a very late attempt, but I proposed, subject

to the convenience of the Court and my learned

friend, to ask that perhaps the application stand

down in the list this morning just for a short time

to

HIS HONOUR: It is a pretty short list; you are it. But I

do not mind standing it down subject to anything

that Mr Brzostowski may wish to say about it.

MR HARRIS: Yes.

HIS HONOUR:	What interval of time are you envisaging?
MR HARRIS:	I have not had an opportunity to speak to my

instructing solicitor to get any sort of detail.	I
literally received the message only moments before
Your Honour came on.

HIS HONOUR:  An hour should be enough.

MR HARRIS: It should be enough, I would have thought,

Your Honour, yes.

HIS HONOUR:  If the matter is resolved before then, again

subject to what may be said against this, it could

be brought on earlier.

MR HARRIS:	Of course, it is not necessarily the end of the matter even if funds are lodged in the Registry in
Melbourne. That is not necessarily, I suppose, an
end to my learned friend's application, but - - -
HIS HONOUR:	When you speak of funds, Mr Harris, I take it

you are speaking of $13,000.

MR HARRIS: Yes, Your Honour. I am told that a bank cheque

has been made available to the principal of

Gaye (No 1) Pty Ltd and he is proceeding to the

Melbourne Registry with that held hotly in his

hand.

Gaye(3) 2 11/12/92

HIS HONOUR:  I will see what Mr Brzostowski has to say about

that.

MR BRZOSTOWSKI:  Thank you, Your Honour. We would oppose

any extension of time, even till today, as a matter

of principle, although of course - - -

HIS HONOUR:  What is the principle?

MR BRZOSTOWSKI: That is to say, Your Honour, that the time

had been set by Your Honour's order. There were

then certain communications between my principal instructing solicitors in Darwin and my friend's instructing solicitors. There was no response to

any correspondence, no response to the facsimile

documents that were sent, until this morning. Time

has already gone past, Your Honour. Incidentally,

in the first place when the matter came before

Your Honour for the purpose of seeking security for

costs, it was by consent at that point in time. So

we had a consent order saying 21 days. That 21

days elapsed on 3 December.

HIS HONOUR:  I do not suggest that the appellant is entitled

to any sympathy. The real question is whether I

should take the drastic action of striking out the

appeal if in fact security for costs will be

available within the next hour.

MR BRZOSTOWSKI:  Certainly. I am raising this because my

instructions are to oppose any extension of time.

I would not want it to be thought that we are

trying to be unreasonable in any way, and of course

I have not had time to confer with my instructing

solicitor since my friend had advised me, literally

moments ago, that he has those instructions. I

have not, for instance, objected to what really is

evidence from the bar table in the present instance

to allow this matter just to be clarified.

HIS HONOUR: That might present difficulties if we were

talking about some action that was to take place in

a week's time or a month's time, but we will know

within an hour whether the money is there or not.

MR BRZOSTOWSKI:  I do not wish to say any more than that.

HIS HONOUR: No, I appreciate your position. If the

alternative were not so drastic, there would be

something to be said for it, but faced with the

possibility - more than a possibility; the

likelihood - that the money is to be paid into

Court within the next half hour or so, if it has

not already been paid in, the real question then is
one of costs to protect your client against the

trouble it has been put to since the order was

made.

Gaye(3) 3 11/12/92

The Deputy Registrar tells me that $13,000 in

cash, which he understands to mean literally in
cash, has been paid into the Melbourne Registry.

So it does not really seem necessary to stand the

matter down.

MR HARRIS:	No, it would seem not, Your Honour.
HIS HONOUR:	I would think the appropriate order would be

that the application be dismissed, but of course be

dismissed with an order that the respondent to the

application pay the costs of the application.

MR HARRIS:  I do not think there is anything I can put on

that issue helpfully, Your Honour.

HIS HONOUR:  Mr Brzostowski, I think it is better to dismiss

the application than to adjourn it because if - and

it does not seem conceivable - anything went

completely awry, you could always come back again

under a fresh application.

MR BRZOSTOWSKI: That is right.

HIS HONOUR:  That does not seem conceivable, in view of what

we have just been told. Do you have any reason to offer why I should not dismiss the application, so

long as I do so on the basis that the respondent to

the application pay the costs?

MR BRZOSTOWSKI:  No, I cannot put anything in opposition to

that, Your Honour.

HIS HONOUR:  Very well, thank you, gentlemen. What I will

do is firstly order in terms of paragraph 2 of the

summons that the time be abridged to allow the

application to be dealt with today. I will make a

further order that the application be dismissed,

and a further order again that the respondent to the application pay the applicant's costs of the summons. Is there anything else I need do?

MR HARRIS:	No, not on my part.
MR BRZOSTOWSKI:	No thank you, Your Honour.
HIS HONOUR:	We will adjourn.

AT 10.08 AM THE MATTER WAS ADJOURNED SINE DIE

Gaye(3) 4 11/12/92