Heperu Pty Limited & Ors v Perpetual Trustees Australia Ltd

[2009] HCATrans 254

[2009] HCATrans 254

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S105 of 2009

B e t w e e n -

HEPERU PTY LIMITED
(ACN 001 517 719)

First Applicant

KIRISI HOLDINGS PTY LIMITED
(ACN 003 010 106)

Second Applicant

BARRY SAMUEL LANDA

Third Applicant

DRUMMOYNE ADMINISTRATIVE SERVICES PTY LTD

Fourth Applicant

and

PERPETUAL TRUSTEES AUSTRALIA LTD (ACN 000 431 827)

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 OCTOBER 2009, AT 11.22 AM

Copyright in the High Court of Australia

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MR G.J. DIGBY, QC:   If your Honours please, I appear with MR G.K. BURTON, SC and MR A.J. HOURIGAN for the applicants.  (instructed by Wilsons Solicitors Attorneys & Conveyancers)

MR R.W. DUBLER, SC:   May it please the Court, I appear with my learned friend, MR J.S. EMMETT, for the respondent.  (instructed by TressCox Lawyers)

GUMMOW J:   Now, we understand there is another branch of this litigation in the Court of Appeal.

MR DIGBY:   There is.

GUMMOW J:   What is its present situation?

MR DIGBY:   It is underway with a preliminary hearing in relation to two questions.  One is the outcome which would be relevant if the application was successful and the first is a technical point raised by the Court of Appeal itself as to whether or not that process was brought in time, whether it can stand in light of the requirements of the rules for it to be brought within a certain time limit.  There is then, if the preliminary issues do not dispose of it, a hearing fixed I think it is for 8 December in respect of the motion to set aside the judgment on the basis that there is fresh evidence available that should have been adduced.

GUMMOW J:   There has been a judgment in the Court of Appeal in August, was there?

MR DIGBY:   I think that was about the date, your Honour.  It might be April, people are whispering to me.  I have forgotten the date of the judgment in the Court of Appeal itself.

GUMMOW J:   Right, but were there further submissions to be f forthcoming on the issue of tracing?

MR DIGBY:   No, not an issue of tracing.  The motion that is before the Court of Appeal is a motion to set aside the Court of Appeal’s judgment on the basis that the case proceeded on the pleadings and in relation to the discovery in a way which induced the respondent, our client, to consider that the appropriate party, Perpetual, remained the appropriate party and that it was putting itself forward as admitting that it was operating the relevant fund, that it received the relevant cheques, that it had dealt with the moneys and that it was not until after the conclusion of the Court of Appeal that it became apparent to our client that the appellant was in fact not the appropriate party. 

So this motion seeks to identify for the Court of Appeal the way in which the matter proceeded to provide a basis for saying there was a misrepresentation as to the correct party both at trial and at appeal and, secondly, to identify documentation which was not discovered which would justify the Court of Appeal putting aside its decision in the Court of Appeal.

GUMMOW J:   Are we talking about a motion in this particular litigation?

MR DIGBY:   Yes, we are.

GUMMOW J:   That has given rise to S105?

HEYDON J:   Justice Gummow has in mind, I think, another case not involving all of these parties but some of them.

MR DIGBY:   Yes, there are other cases as well.

HEYDON J:   The Court of Appeal, correct me if I am wrong, in effect said that they were persuaded by the reasoning of the appellant but they would not allow the appeal unless evidence, or at least argument, was put to them to indicate that it would not be a purely academic question, in other words, that there would be some point in making an order.  Now, what is the state of that procedure?

GUMMOW J:   This is the litigation involving Ms Bell, is it not?

MR DIGBY:   Yes, I am sorry to say that I am not as conversant with that as I might be.  I am not briefed in that matter.

GUMMOW J:   Mr Dubler might be though.

MR DIGBY:   Mr Dubler no doubt is.  Perhaps he could explain what is happening, if your Honours please.

GUMMOW J:   Yes.

MR DUBLER:   Well, yes and no.  The Mrs Bell case does not involve us and, as I understand it, that matter has nothing to do with these proceedings, but it does involve the applicants against Mrs Bell.

GUMMOW J:   The Court of Appeal ordinarily would have listed them together, would it not?

MR DUBLER:   Yes, there was comment that that should have happened, but it has not.  So they are separate proceedings and that issues of tracing do not arise in this application and they do not concern our clients.

HEYDON J:   Were there not issues of restitution in these other Court of Appeal proceedings?

MR DUBLER:   I cannot answer that.

HEYDON J:   It may not be the same issue of restitution.  Mr Emmett, you seem to be moving to the left. 

GUMMOW J:   Mr Emmett is very agitated.  You had better listen to him.

MR DUBLER:   There are some issues of restitution here, but they are wholly different to what could be described as a Mrs Bell issue.

GUMMOW J:   What should we do then in light of this re‑opening motion that is to be listed in December, as we have been told?

MR DUBLER:   Our application is twofold.  Firstly, that it would not be appropriate for this Court to grant special leave or even perhaps consider the issue of an application for a new trial on bases of misrepresentation or new evidence because that is currently extant before the Court of Appeal.  That can give the applicant all of the remedies they wish.  There would be issues of evidence involved.  There is not yet a judgment about that, nor even are there crystallised issues of law that need to be ventilated in this Court.  So that that aspect, with respect we say, of the special leave application before your Honours should not be entertained or be dismissed. 

The balance of the matters, we submit, are separate, which could be described as the banking matters or the cheque matters, that we are desirous of and think it appropriate that the Court deal with that special leave application.  If it wishes to dismiss the application, it can be dismissed.  If it

wishes to uphold special leave, it would probably be not appropriate to set it down because there is the potentiality of the Court of Appeal judgment being set aside and there being a retrial.  But we are all here to argue it, so we will be ready to argue the banking issues and have the benefit of the Bench’s views.  It may be that the bench would prefer to simply have it all go away until the Court of Appeal deals with it, but we are all ready to argue the banking matters and if there are special leave points, it is best we know now.  We will be, of course, urging that none arise.

GUMMOW J:   Thank you.

MR DIGBY:   Your Honours, can I make some observations about the process before your Honours make a decision about that?

GUMMOW J:   Yes.

MR DIGBY:   Firstly, the scope of the debate in the Court of Appeal about the bases for the case being set aside are no different to the ones that we have been advancing in the High Court if special leave was granted in respect to that aspect of this special leave application.  Secondly, both the processes were issued at the same time on 20 May.  There was an imperative under the High Court rules to get the special leave application on foot and clearly it needed to cover all the arguable bases.  There was also the motion issued in the Court of Appeal to provide that second concurrent opportunity for our client to agitate. 

GUMMOW J:   Yes, I understand why the parties have been doing what they have been doing.

MR DIGBY:   If your Honours were to grant special leave in respect of the miscarriage aspect to direct it to setting the matter aside in the Court of Appeal, then, of course, there would be no need for the matter to proceed in the Court of Appeal.  If special leave was granted in respect of that aspect, we would seek to stand over the Court of Appeal proceedings.  One other matter that your Honours ought to be aware of, we did approach our learned friends in relation to this aspect and suggested that there might be an agreed approach to the Court suggesting that this aspect of the application be stood over pending the Court of Appeal proceeding, but there was no agreement about that and therefore we stand before the Court today having issued the special leave application to prosecute it if the Court thinks that is convenient and appropriate.

HEYDON J:   We do not normally divine in proceedings below until they have completed themselves.  We do not normally fillet out little issues.

MR DIGBY:   Of course, your Honour, we appreciate there is a tension there.  The timing of all this has made it such that we found ourselves in a position where we tried to resolve this impasse by consent.  That has not happened.  We have issued the application and, if your Honours were not minded to deal with it, then we would ask that it be adjourned or stood over because we would regard it as being the subject of, perhaps, amendment.  In the event that there was a negative outcome in the Court of Appeal, it could then still proceed, picking up whatever amendments to that application needed to be made as informed by what ultimately occurred in the Court of Appeal.

GUMMOW J:   Yes.  What we propose is to stand over the special leave application today to be restored for directions before either Justice Heydon or myself when it has become clear what course is pursued in the Court of Appeal and how it is resolved and then when it is relisted for directions before Justice Heydon and I when the situation is clarified in the Court of Appeal, directions can then be given for the re‑listing of the special leave application and the processing of any further process that may issue in this Court by that stage.

MR DIGBY:   If your Honours please.

GUMMOW J:   Is that clear?

MR DIGBY:   Yes, your Honour.

GUMMOW J:   Costs of today would be reserved.

MR DIGBY:   If your Honours please.  Your Honours will also be aware that we made the approach to the Court to divide the argument between myself ‑ ‑ ‑

GUMMOW J:   Yes, we are well aware of that.

MR DIGBY:   We are grateful for your acquiescence in that, if your Honours please.

GUMMOW J:   Is there anything you want to say, Mr Dubler?

MR DUBLER:   No, I think your Honour has heard our submissions.

GUMMOW J:   The application is stood over with liberty to the parties to re‑list it before Justice Heydon or myself after the conclusion of the proceedings in the Court of Appeal.  Costs of today will be costs of the special leave application.

We will take a short adjournment to reconstitute.

AT 11.33 AM THE MATTER WAS CONCLUDED