Hunter Resources Limited v Melville

[1991] HCATrans 84

EO b.

HIGH COURT OF AUSTRALIA

In Chambers

MR JUSTICE TOOHEY

No P 21 of 1987

APPLICATION TO VARY ORDER

HUNTER RESOURCES LTD

AND

MELVILLE AND REYNOLDS

TRANSCRIPT OF PROCEEDINGS

Melnold 19.3.91

PERTH

10.01 AM, TUESDAY, 19TH MARCH 1991

EO

A31. 10.01

TOOHEY J:  Be seated please. Call the first matter please?

Mr Rowe?

MR ROWE: May it please your Honour, I appear for the

appellant.

TOOHEY J: Yes, thank you.

Miss Deane?

MS DEANE: May it please your Honour, I do not have specific

instructions to appear for the second respondent in this

matter. It is simply a case of having been served with the

papers, so out of courtesy we are attending this morning.

TOOHEY J: Yes. Thank you for that.

Mr Rowe, what will you do about this long running saga?

MR ROWE:  Your Honour, as you are aware, this is the third

time this has been brought before you.

TOOHEY J:  Well, I think on some other occasions it has not

been necessary to appear.

MR ROWE:  It has been adjourned without appearance.

TOOHEY J: Mm.

MR ROWE:  Has your Honour had ari-' opportunity to look at my

affidavit that I - -

TOOHEY J: Yes, I have.

MR ROWE: That affidavit sets out the various attempts we have

made to serve the first respondent with the papers in these

proceedings.

Your Honour, subject to your ruling, I propose to proceed

ex parte with this application.	The basis of that application
is pursuant to Order 51 Rule 5. That rule provides:

"A justice, if satisfied that the delay caused

by giving notice would entail serious mischief,

may make an order ex parte upon such terms as

to costs or otherwise, and subject to such

undertaking, if any, as the court or justice

thinks just in the circumstances."

ST

Melnold 19.3.91

Your Honour, in my submission, there will be a serious mischief if this matter is allowed to continue for much

longer. Whilst I admit there has already been delay in

bringing the application before the court, that is, in filing

the papers, the further attempts to bring the application before the court will result in even more mischief being perpetrated.

TOOHEY J:  Well, what do you include in the notion of

"mischief"? Cost, presumably?

MR ROWE:	That is correct.
TOOHEY J:	And delay, I suppose?
MR ROWE:	That is correct, your Honour.

TOOHEY J: Yes.

MR ROWE: And a part of that submission is that the court has

already made its order and, in my submission, this is just a clerical mistake. It is not like the case where, in the Gould v Vaggelas case, a question of interest was resolved some

months down the track.

I will go on to develop this, but really the matter is

just a simple one; a correction of a clerical error. I do

not think there is	really much more that I can say about the
question of whether	we should proceed ex parte or not.

TOOHEY J: Your affidavit discloses that the respondent was

served with - - perhaps I should not say the respondent in the circumstances of this case, but th~t is what it is all about.

Mr Melville was served with · the application, or an application, but at a time after the hearing date had expired.

MR ROWE:  Yes, that is correct, your Honour.

TOOHEY J:  So I suppose the most that can be said is that he

is aware that there is before the court some proceeding

designed to clarify the form of judgment.

MR ROWE:  That is correct.

TOOHEY J:  Yes. Well, I think you could just move on to the

substance of the matter, Mr Rowe.

MR ROWE:  Thank you. Has your Honour had an opportunity to

read the affidavit	of David John Martino filed in these
proceedings?

TOOHEY J: Well, I have certainly read it at some time.· Are

you speaking now of the affidavit with the various annexures

attached to it?

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Melnold	19.3.91
MR ROWE:	That is correct.

TOOHEY J: Yes. Yes, I have.

MR ROWE: I do not propose to address you in detail. That

affidavit sets out the history of the matter starting from the

initial proceedings before the warden, which is the second
respondent.

TOOHEY J: I think you could leap over a few steps, Mr Rowe, and just come to the order of the court itself, following the hearing of the appeal.

MR ROWE: The order of the court itself was that the appeal be

allowed with costs, and that was the draft order that was

delivered with the reasons for decision.

TOOHEY J:	Was that order in the pamphlet?
MR ROWE:	This is the order contained in the report of the

decision and the - -

TOOHEY J:	Do you mean the report in the Commonweal th Law
Reports?

MR ROWE:	That is correct.	It is noted on the last page.
TOOHEY J:	Thank you.	(If you let Mr Rowe have that back,
thank you.)

MR ROWE:  And the reasons that were actually delivered at the

same time contain the same order.

The draft order of the court was that the appeal be

allowed with costs. The problem appears to have arisen in the

exchange of draft minute between o.ur firm and with the deputy

registrar. I filed an affidavit with your associate this

morning.	I do not know whether she has had an opportunity to
give it to you?

TOOHEY J: Well, I have not read it.

UNIDENTIFIED SPEAKER: It is here.

TOOHEY J:	Thank you.
MR ROWE:	I apologise for the delay - -

TOOHEY J: It is all right. Just give me a moment to read it, please?

Yes. Yes, I can see what has happened.

ST

Melnold 19.3.91

MR ROWE: That slip does not appear to have been noticed by

either the appellant's firm, or the deputy registrar, in the

circumstances and the court has not, in effect, made its
order. The order sought falls clearly within the provisions
of Order 29 Rule 11 in that it appears to be just a clerical

mistake.

The nature of the slip is such that no prejudice will be

suffered by the first respondent by the amendment.	It is not
a case in which - -

TOOHEY J: Can I just clarify this, Mr Rowe? You are

proceeding, are you, under Order 29 Rule 11 and not under Order 44 Rule 22, because the summons would suggest that it is

a variation of the order that is being sought, which would

tend to suggest in turn Order 44 Rule 22?

MR ROWE:  I am proceeding under Order 29 Rule 11.

TOOHEY J:  Well, I suppose it all came about because while

there were two respondents on the record, there was

effectively only one respondent?

MR ROWE:  That is correct.

TOOHEY J: The first respondent. Yes.

MR ROWE:	The second respondent was there purely for matter of
form.

TOOHEY J:  Yes. I do not think I need to hear from you any

further, Mr Rowe.

Miss Deane, did you wish to say anything?

MS DEANE:  No, your Honour. We have no objection to the order

sought by the appellant.

TOOHEY J:

Yes. I am satisfied :.that an order in the terms

sought by the appellant is appropriate. It does appear that,

al though this matter has been proceeded with to date on the

basis that it was a variation of an existing order that was

sought, in truth the draft order does not accurately reflect

the intention of the court at the time judgment was delivered.

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Melnold 19.3.91

I am satisfied that it is appropriate in the

circumstances, having regard to the long history of this

matter and the fact that Mr Melville is at least aware that some process is on foot and because undoubtedly mischief will

be caused by the continuation of this matter, both in terms of delay and cost, there should be an order in terms of the

summons. There will be an order accordingly.

MR ROWE:  May it please your Honour.

TOOHEY J:  Thank you, Mr Rowe. Thank you, Miss Deane.

ST
Melnold	19.3.91