Hunter Resources Limited v Melville

[1990] HCATrans 27

!N THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P21 of 1987

B e t w e e n -

HUNTER RESOURCES LIMITED

Appellant

and

BRIAN ANTHONY MELVILLE

First Respondent

and

DENIS REYNOLDS SM

Second Respondent

For mention

MASON CJ
BRENNAN J
DEANE J

DAWSON J

Hunter(2)

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAYJ 1 MARCH 1990, AT 2.45 PM

(Continued from 16/9/87)

Copyright in the High Court of Australia

ClTl/1/PLC 58 1/3/90

:MASON CJ: It seems to us that the difficulty in this

matter is that no notice has been given to the

first respondent and you do not have any material
which indicates that he has consented to an

amended form of order.

MR D. :MARTINO:  Yes, the circumstances leading to this hearing

today are that there was correspondence between the

solicitors for the appellant and the registry,

discussing whether a proposed application to vary the

order for costs could be dealt with by a single

Justice :in chambers in Perth or whether it needed

to be dealt with by a court comprising three Justices
and that correspondence led to the matter being put

before the Court today and it is only, by coincidence,

that I am here who also appeared as junior counsel on

behalf of the appellant at the hearing of this appeal,
that I am here to assist the Court in relation to

the question that just arose. But because there has

been no application actually issued there has been

nothing to serve on either of the respondents. The only

submission that I can really make today is that the

Court of its own motion on delivering its reserved decision, granted the order for costs against both respondents. It is clearly inappropriate that an order for costs be made against the Wardenin respect of whose decision a writ of certiorari was .sou$.t, .and I

would simply ask that the Court, if it saw fit

of its own motion,could today vary that order.

:MASON CJ: Yes, but the difficulty,Mr Martino, is granted that the order is inappropriate in the form in which it

has been recorded and that it should be re.;.formed,

the difficulty is how do we do it without notice to

the first respondent?

MR :MARTINO: Well, as I say my submission simply is in the same

way that without hearing from the parties on the

question of costs an order for costs was made.

:MASON CJ: Yes, but the matter was placed in the list and the

parties had notice when the matter was placed in

the list for judgment.

MR :MARTINO:  Yes. Well the rules certainly contemplate mistakes

in judgments being corrected by a court or a Justice

on motion or summons so there is a circumstance

contemplated where it could be done ex parte and,

obviously, that is going to be a rare circumstance but

it is a very rare circumstance indeed where an order

for costs is made against a Warden and we would say

that this is an appropriate circumstance,. It is not

really going to affect the position of the first

respondent because there is already an order for costs

against the respondents. So ~iven those two points.

ClTl/1/JL	59	1/3/90
Hunter(2)

MASON CJ: Yes, but when you have got an order for costs

against two respondents,then there may be a

matter of recovery by one respondent as against

another?

MR MARTINO: Well, my submission is that it would be a

several liability but in this case there could not

be any question of recovery by one respondent

aga,inst another given the circumstances, that is

even if the order stood -

MASON CJ:	Mr Martino, I think I have made it plain enough to
you that the Court is not minded to make the order unless the respondent has notice or unless
you can place material before the Court indicating
that the respondent consents to the order that you
seek. It will be necessary for you to formulate the
order you want and to bring it to the attention of the first respondent.
MR MARTINO:	Yes, there is one other matter, Your Honour, and

that remains this question that the solicitors for

the appellant was corresponding with the registry

about, ~ and that is whether the application needs to be

made to a Fu.11 Court, wherever it is sitting, or

whether it can be made to a Justice sitting alone in

Perth, and I wonder whether a direction can be given

enabling the matter to be dealt with by a single

Justice,given the unusual nature of the order, given

that it is clearly inappropriate.

MASON CJ: Very well, it can be done before a single Justice

in Perth.

MR MARTINO:  Thank you Your Honour.

AT 2.49 PM THE MATTER WAS ADJOURNED SINE DIE

ClTl/2/JL	60	1/3/90
Hunter(2)