KPMG (a firm) v The Commonwealth of Australia & Anor

[2010] HCATrans 211

[2010] HCATrans 211

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

Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 2 AUGUST 2010, AT 2.27 PM

Copyright in the High Court of Australia

MR A.C. ARCHIBALD, QC:   If your Honour please, I appear with MR P.H. SOLOMON for the plaintiff.  (instructed by Allens Arthur Robinson)

MR C.J. HORAN:   If the Court pleases, I appear for the first and second defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Archibald.

MR ARCHIBALD:   May we provide some minutes of proposed orders for the Court?

HIS HONOUR:   Yes.  Thank you.

MR ARCHIBALD:   I understand these are agreed, your Honour.  Your Honour, after the matter was last before your Honour the plaintiff did provide to the defendants a proposed amended statement of claim to facilitate the desired demurrer.  In light of that, demurrer was in fact filed on 23 June.  Paragraphs 1 to 3 of the minutes seek to deal with those circumstances.

HIS HONOUR:   Yes.

MR ARCHIBALD:   Paragraph 4 contemplates that the demurrer be dealt with before the Full Court and paragraphs 5 to 9 reflect the parties’ agreement as to the steps and the timing of the steps with a view to a hearing, including catering for the potentiality of interveners.

HIS HONOUR:   Yes.

MR ARCHIBALD:   Your Honour, there was raised, again when the matter was last before your Honour, what might be in the demurrer book.  The parties have agreed a summary of the amended statement of claim in the Federal Court proceeding.  It just gets on to a second page ‑ ‑ ‑

HIS HONOUR:   Whereas the statement of claim, I think, is properly described as not short.

MR ARCHIBALD:   It is gargantuan.  It would not get into six volumes, I do not think.  So the parties contemplated that the agreed summary might find its way into the demurrer book, but that no doubt will be sorted out.

HIS HONOUR:   But so long as that is going to suffice for the parties, so be it, I think.  The demurrer book need include only such documents as the parties see as being necessary for the argument.  How big is this statement of claim, Mr Archibald?  It is very large.

MR ARCHIBALD:   It is more than 600 pages.  Perhaps we will take the course of having some copies in reserve for the Court in case something eventuates.  But the summary has been formulated by the parties with a view to what they anticipate. 

HIS HONOUR:   Yes.

MR ARCHIBALD:   Sometimes one does not anticipate everything, so that if something moves there would be two courses:  one, to provide copies of the actual pleading or two, to agree upon some further elements by way of summary.

HIS HONOUR:   All I would ask is that to the extent possible, recognising that this is not always possible, but to the extent possible, attention be given to those things before we begin the hearing.  Recent experience points to the difficulties that emerge when facts are being agreed on the second day of an urgent Full Court matter. 

MR ARCHIBALD:   An urgent one, yes.

HIS HONOUR:   Yes.

MR ARCHIBALD:   Of course something might occur during the oral hearing but I suspect if difficulties emerge they will be appreciated when the written submissions are being prepared.

HIS HONOUR:   Yes.  There is, I think, nothing else that seems likely to get into a demurrer book, is there?

MR ARCHIBALD:   Not that we are presently aware of, no.

HIS HONOUR:   Now, your timetables – I am not going to play with the timetables you have agreed on, but you would need therefore to have about not quite a month anticipation of fixed hearing date, would you not?

MR ARCHIBALD:   That is so, yes.

HIS HONOUR:   I anticipate no difficulty about that.  I just want to have in mind what is involved.

MR ARCHIBALD:   Yes.  If we were to be accorded a November hearing date, then I think the timetable fits in quite well for all the parties.

HIS HONOUR:   Good.  Now, do we need to give any further direction about 78Bs or have there been enough 78B notices given?

MR ARCHIBALD:   We think there have been.  We have had responses.  Some are biding their time.

HIS HONOUR:   Yes.

MR ARCHIBALD:   I do not think we need to give any further notices.

HIS HONOUR:   Right.  Well, again, no doubt, written submissions will be the next opportunity to flush out any difficulty of that kind.  The only thing I would be minded to add to the minutes is simply liberty to apply on – what should we say, three days notice to opposite parties?

MR ARCHIBALD:   Yes, your Honour.  Three will be ample.

HIS HONOUR:   Yes.  Thank you, Mr Archibald.  Mr Horan, is there anything you wish to add to what has transpired?

MR HORAN:   No, your Honour.  I can simply indicate that from the defendants’ position is that we agree with the orders that are proposed in the minute.

HIS HONOUR:   Therefore, I can say to the Chief Justice and to the Senior Registrar that the matter is ready for fixing at any time in and after the November sittings.  Would that be right?  I think we have sittings proposed – or that is we have fixtures proposed into October, but any time in and after November.  Is that right?

MR HORAN:   Yes, your Honour.

HIS HONOUR:   Yes.  There will be orders in terms of the proposed orders submitted by the parties with the addition of liberty to apply to either party on giving not less than three days notice in writing to the opposite parties.

One last matter, simply to show that I have read it, would it be contrary to the wishes of the parties if, instead of reserving costs, I made them in the cause?  It simply avoids any sweep up of costs orders at some later stage, which invariably gets forgotten.

MR ARCHIBALD:   Yes, your Honour.

HIS HONOUR:   So if we make the costs in the cause.

MR ARCHIBALD:   In the cause.

HIS HONOUR:   Yes.  There will be orders in those terms.  Thank you. 

Adjourn the Court.

AT 2.38 PM THE MATTER WAS ADJOURNED