KPMG (a Firm) v Commonwealth of Australia & Anor [2011] HCATrans 9

[2011] HCATrans 9

[2011] HCATrans 009

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M66 of 2010

B e t w e e n -

KPMG (A FIRM)

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Second Defendant

FRENCH CJ
GUMMOW J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 1 FEBRUARY 2011, AT 10.17 AM

Copyright in the High Court of Australia

MR A.C. ARCHIBALD, QC:   May it please the Court, in this matter I appear with my learned friends, MR M.K. MOSHINSKY, SC and MR P.H. SOLOMON, SC, for the plaintiff.    (instructed by Allens Arthur Robinson)

MR S.J. GAGELER, SC, Solicitor‑General of the Commonwealth of Australia:   If the Court pleases, I appear with MR C.J. HORAN for the defendants.  (instructed by the Australian Government Solicitor)

FRENCH CJ:   Mr Archibald, a notice of discontinuance has been filed, I understand.

MR ARCHIBALD:   Yes, this morning, your Honour.  The matter was settled this morning.  Part of the arrangements between the parties attended upon that settlement involved the filing of such a notice endorsed with the consent of the defendants, and that has now occurred.  The settlement, I might inform the Court, that has occurred at this proceeding is part of a settlement of wider proceedings between these parties, and those proceedings do involve other parties again.  These parties have been striving to settle those proceedings for some time and it is regretted that it was not possible to achieve settlement until this morning.  KPMG, for its part, apologises to the Court for the inconvenience that will have been occasioned.

FRENCH CJ:   Thank you, Mr Archibald.

MR GAGELER:   If your Honours would permit me to add some words by way of apology and explanation.  I appear in these proceedings for the Commonwealth and for ASIC.  The settlement which has been reached this morning is a settlement which relevantly involves KPMG and ASIC exercising its separate statutory functions.  The Commonwealth is not a party to that underlying settlement and has been in no position to exercise influence over its timing.  So far as ASIC is concerned, the timing of the settlement is a matter of regret.  The inconvenience a late settlement causes to the Court and to other litigants is something of which ASIC is deeply conscious and it apologises to the Court for the inconvenience.

FRENCH CJ:   Thank you, Mr Solicitor.  I should say for the record that these proceedings were commenced in this Court on 18 May 2010.  The parties were notified of today’s hearing on 27 October 2010.  As a result of the last minute discontinuance of the matter, the Court time allocated for this hearing, which could have been allocated to another matter, has been wasted.  So too has the time of the Court in preparing for the hearing.

Those bringing proceedings in this Court should ensure that they explore and exhaust any possibility of their resolution well in advance of the date set down for hearing.  I have no doubt, having regard to the remarks made by counsel, that they will convey those views to their instructing solicitors and their clients. 

The Court will now adjourn to a time to be fixed tomorrow.

AT 10.21 AM THE MATTER WAS CONCLUDED