Lombard Insurance Company (Aust) Limited v G & J Shopfitting & Refrigeration Co Pty Limited

[1989] HCATrans 217

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S64 of 1989

B e t w e e n -

LOMBARD INSURANCE COMPANY (AUST)

LIMITED

Applicant

and

G. & J. SHOPFITTING & REFRIGERATION

CO. PTY LIMITED

Respondent

Application for special

leave to appeal

MASON CJ
GAUDRON J

McHUGH J

Lombard

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 SEPTEMBER 1989, AT 2.24 PM

Copyright in the High Court of Australia

S1Tl2/l/RB 1 15/9/89

MR J.S. COOMBS, ~C: If the Court pleases, I appear with my

learned riend, MR I.D. ROCHE, for the applicant.

(instructed by Maxwell Connery & Co)

MR G.G. MASTERMAN, ~C: If Your Honours please, I appear with

my learned riend, MR T.A. ALEXIS, for the

respondent. (instructed by Konstan & Associates)

MR COOMBS:  May I, Your Honour, hand up an outline of

submissions and four booklets containing authorities

to which Your Honours may wish to refer and some

documents.

MASON CJ: This is a special leave application, is it not?

MR COOMBS:  Yes, Your Honour, it is. From the late 1970s on,

Your Honours, most defendants in New South Wales have asked for juries in conunon law actions. Nothing turns

on it, but this case is typical. It was the defendant

that asked for the jury, notwithstanding the erroneous

statement to the contr~ry by the learned President in

the court below. The result of that policy is that

there are now,as at 30 June 1989, 3323 jury causes

pending in the conunon law division of the New South

Wales Supreme Court and more than 2000 pending in the

district court.

The effect of the Court of Appeal's decision

will be to deny to the courts trying those cases
useful discretions in all cases and very useful
discretions in a number of cases. Firstly, the

reasoning of the President applies equally, we would

submit, to section 89(1) so that the dee ion impacts

on all conunon law causes. The effect is to deny to the

trial judge, after conunencement of the trial, the

discretion to order that all or any issues of fact be

tried by the judge alone, rather than by a jury. If,

in the course of the trial, a particularly difficult

or complex issue of fact arose, the trial judge is not

permitted, once the reasoning in the decision is

adopted, to hive off that difficult question and leave

the fundamental questions perhaps, of fraud or of
arson, to the jury.

Secondly, if,in any of the very large number of jury causes that are pending, for whatever reason the

jury is discharged - and this is a conunonplace,

sometimes caused by sickness	death or contamination
of a juror or misconduct of counsel, anyone	of a

number of reasons - the judge is, by this decision,

denied the opportunity to save the costs, to save the

judicial time and to avoid a total retrial.

McHUGH J: Is that so? What is there to stop you now going back

to Mr Justice Smart and getting an order under

section 89 and then, either with the consent of the

parties or perhaps exercising his right to require

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parties to make admissions, to get the transcript in

before him -that is the transcript of the previous

trial in before him?

MR COOMBS:  Before him?

McHUGH J: Yes.

MR COOMBS:  Your Honour, the Court of Appeal have denied us

that opportunity because they say that His Honour had

no power to dispense with the jury once the trial had

begun and that - - -

McHUGH J:	The trial is over now.
MR COOMBS:	But that the trial must be recommenced before

somebody and a new jury.

McHUGH J: The Court of Appeal judgment cannot mean that, can it?

MR COOMBS:  Yes, Your Honour, that is what it does mean. ..

McHUGH J: You have to summon another jury. Before that jury

is summoned, why cannot you make an application under

section 89?

MR COOMBS:  The way in which the Court of Appeal's decision is

framed and the orders that they have made, in our

respectful submission, preclude that. They have said -

McHUGH J: Is that any different to what the situation was

before the trial commenced? There was an order for a

jury trial. It was open to you, before the jury was

summoned or at least sworn to have an order made under

section 89. Why cannot you go back now and get it made?

MR COOMBS: If we do that, Your Honour, then all the costs are

thrown away and the power question, which is a very

important question for a very great number of cases and

not just for New South Wales but for at least three other

States and the district court in New South Wales as well

as the supreme court - - -

McHUGH J:  I was just taking you up on your point that once a

jury is discharged you could not take advantage of the

section and I suggested there that you still could.

MR COOMBS:  I take Your Honour's point, but the waste would still

remain and the point still remains a point of great

public importance and this is an entirely appropriate

vehicle to raise it. It would mean, if we were

successful in the appeal, that we would go back before

Mr Justice Smart and the trial would simply continue

without any other judge having to read the transcript

and be denied the opportunity that His Honour has had of seeing the witnesses and forming views about them.

So that it would deny the appropriate vehicle its

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opportunity to be dealt with and the publiclyimportant

issue to be tried and it would significantly disadvantage

the present applicant.

Even if the case relates only to cases where

fraud and the like are alleged, it is still a matter

of great public importance because of its application

in many States and in both supreme and district courts.

MASON CJ:  How often does this sort of question arise, Mr Coombs?

How often has it arisen in New South Wales?

MR COOMBS:  Your Honour, there are no statistics kept of how

often juries are discharged after the case has commenced.

Experience suggests that it might be between 10 and 15

per cent over :0_ long period of time. Certainly it was

much more commc. in the 1960s than it is now, but I

have had, in the last 12 months, two cases where juries

were discharged after eight or nine days of hearing, in

one case because of a need to amend and in the present

case because of the contamination - or possible
contamination of the juror. So that it happens

commonly, indeed it is very rare that a long jury cause

proceeds from one end to the other without there being

an application for a discharge somewhere, either after

the opening or in the run of the race. And, of course,

Your Honour, we have sought the statistics which would make it more convincing than anecdotal information but

the statistics are just not kept. All we can tell

Your Honours is the number of causes in New South Wales

that are outstanding.

MASON CJ: Yes.

MR COOMBS: It is common ground, as this outline suggests,

that this is a case to which section 88 applies and we

are concerned with the section. I think Your Honours

have it in the outline, no need to look anywhere else,

and we put that the decision is wrong in principle

because it involves the reading into the section of the

words "before the trial is commenced". Really, the learned President says this section only applies before	the case commences and it should be amended so as to
make clear that it can apply later in particular
circumstances which, in our respectful submission, is
just a nonsense. You do not read words that are not
there in, in order to require the legislature to amend
a section to take them out again.

McHUGH J: It is issues of fact that have to be tried. You

might not know what an issue of fact is until you are

half-way through the case.

MR COOMBS:  Indeed, Your Honour, and that is the very point

Lord Justice Greer makes. The appropriate time for

the decision might be the point at which an opening

is concluded or at the end of a cross-examination on

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a particular set of documents. In the present case, an

appropriate time might well have been at the end of the

opening of the defendant's case and the cross-examination

of the plaintiff on bank diaries going back over a large
period of time, the comparison between the records that

were given to the bank and to my client to found a claim

and the entirely different documents that are supplied

to the income tax commissioner. That is not really the

point in the present case. We are here to do with

power, but it points up that a very appropriate time

for the exercise of power is at a point well after the

case has started in many cases. You just do not know

always, until documents are produced on subpoena,

evidence is given by a witness which makes it clear that

the documents become overwhelmingly relevant, until you

are well into the case.

But, Your Honours, I do not perhaps need to take

Your Honours to the passages in FAI GENERAL INSURANCE, a passage in Your Honour Justice Gaudron's judgment, and the joint judgment in - do Your Honours wish me to

take you to the short passages.

MASON CJ: I do not think it is necessary.

MR COOMBS:  Thank Your Honour. Then the second basis we put

is that His Honour Mr Justice Kirby has misstated - and

we would put clearly misstated - the effect of the two

relevant authorities. He refers to the judgment of

His Honour Mr Justice Sholl in the Victorian case and

says that they are obiter which, with respect to the

learned President, the decisions are essential - the

passage is essential to His Honour's decision and is

clearly a finding quite contrary to the finding of the

Court of Appeal and we set the passage out.

MASON CJ: But that does not matter, because it was not an

authority binding on the Court of Appeal anyhow.

MR COOMBS:  No, Your Honour, but the misunderstanding taints

respectfully submit. Then the other ground for the decision of the presiding judge, we would	distinction is set out in the outline. Then he
referred to the English authority on a virtually identical section and puts that Lord Justice Greer
contemplated the possibility of a judge dispensing with
a jury before the commencement of the trial. That is, we would respectfully put, just a faulty conclusion.
Lord Justice Greer is clearly saying that the appropriate
time - that it is inappropriate, perhaps, to do it
before the trial is either cornrnenced or about to
commence when much more information about the way in which the case is likely to unfold would be available.

McHUGH J:  The English provision now expressly states that the

application shall be before trial, does it not?

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MR COOMBS:  Yes, Your Honour, but not at the time when this

decision was made and, similarly, Your Honour, there

is a change in the position in Victoria with the new

rules there, but the question is still open in Victoria,

the section still says where there is complicated

documents the judge can move, and it does not say when,

so the question arises there. Similarly in Western

Australia, similarly in Queensland and in both the major

courts in New South Wales.

McHUGH J: But the Court of Appeal decision is not binding there.

Your point is that there are conflicting decisions, is

it not?

MR COOMBS: Exactly, Your Honour; conflicting authorities in

England, conflicting authorities in Victoria and the

point is thrown up in all four of the States that I

have mentioned and in two of those States at least there

is a significant question - there are large numbers of

jury trials to be heard. If there is no power, then

even if the parties conpent, the matter cannot be fixed.

If there is no power and the parties consent, it still

cannot be done, and that will have a very serious

impact on a large number of cases pending in large

numbers particularly in Victoria and New South Wales.

Although not binding in other States, Your Honours, the persuasive effect of the Court of Appeal's decision

would have a significant impact on a very large number

of trials pending in the other States, as well as in

New South Wales where there are something of the order

of 7000 in the pipeline.

MASON CJ: Thank you, Mr Coombs. Yes, Mr Masterman.

MR MASTERMAN: If the Court pleases. If I might hand up some

submissions and again, appreci~ting it is a special

leave application, three bundles ..

MASON CJ: Is ground 1 in your grounds for refusing special

leave your strongest point, Mr Masterman?

MR MASTERMAN:  It was a strong court. My friend has referred

to the President -

MASON CJ: The question is is the decision as strong as the

court.

MR MASTERMAN:  It is a decision of Mr Justice Meagher and

Mr Justice Hope, as well as the President.

MASON CJ: Yes, but we have been known to grant special leave

to appeal from their decisions.

MR MASTERMAN:  Yes, if the Court pleases. On the question of

importance, we would submit this, Your Honours, that

the Court of Appeal chose to deal with this matter on

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the basis of a single question of law. That question

of law was of some public importanc~ sufficient, we

would submit and as we did submit, to enable the Court

of Appeal itself to grant special leave to appeal

against the decision of His Honour.

MASON CJ:  Do you strenuously contest that the decision is

arguable? I know you say here it is clearly correct,

but plainly there is a conflict of authority in relation
to the operation of similar provisions and, on that

footing, is it not an arguable point?

MR MASTERMAN:  It is arguable, yes. We submit there are other

MASON CJ: Maybe, but that gets that point out of the road to

begin with. Now, next question:  is not the question

one of some public importance, namely whether or not

the power can be exercised during the course of a

trial as well as before a trial?

MR MASTERMAN: It is of some public importance.

MASON CJ:  We have those two points established. Now, why

should not special leave be granted?

MR MASTERMAN:  Because we would submit, firstly, this is not

an appropriate vehicle or appropriate circumstances in which to grant special leave. Secondly, having regard to the course of this matter, including the election

of the defendant/appellant to have a jury, with knowledge

of all the financial circumstances, the quite bizarre

manner in which the trial judge dealt with the

communication from an alleged employer of one of the

jurors to the defendant's solicitors and the position

of this plaintiff, forced with a recital of the times that are set out in the chronology, waiting for years

to have a matter come on, to be met immediately prior

to the first date fixed for hearing with an amended
defence pleading arson by the plaintiff, that necessitating

an adjournment of some three or four months; the matter

continuing for 11 days before the court; virtually all

nature which is quite capable of being entertained by a

the financial information is of a simple kind. There is,
in the papers, an example of the balance sheet. It is

a small carpentry joinery type of shopfitting business.

jury, and that had nothing to do whatsoever with the

decision made to dismiss the jury or to send them on

their way. It was this communication from an alleged

employer of a juror which is consistent with, and we

would submit, evidences nothing improper having taken

place,which could have been clearly dealt with by an

appropriate direction to the jury-

GAUDRON J: But, Mr Masterman, that having happened, it cannot

be undone. That is gone. That jury is gone and the

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question is thereafter, whatever might have infected

that decision, according to your argument, the question

was thereafter could the trial judge order further

trial without a jury. Could he thereafter make an

order dispensing with the need for a jury.

MR MASTERMAN: We submit, on the proper facts, the decision if

not mala fide - that is too strong a word - was made

without any reasonable basis on the part of the judge.

GAUDRON J: That is the decision to discharge.

MR MASTERMAN:  His decision - and the decision to dispense with

the jury.

GAUDRON J:  So that is simply a question, if Mr Coombs is right,

for argument at a later date as to what should then be

done.

MR MASTERMAN:  We would be putting to this Court, as we put to

the Court of Appeal which did not need to deal with it,

as the court saw, that on the documents - the agreed

documents - the documents placed before the court, no

reasonable judge could have exercised the power to

dispense with the jury.

MASON CJ: But why would an appeal to this Court be concerned

with that circumstance, with that argument? At the

moment the Court of Appeal has decided that there is

no statutory power at all. If an appeal were brought to

this Court, why could we not say, "Court of Appeal wrong,

case goes back"? Our decision would merely establish the existence of a statutory power to be exercised in the circumstances in which the statute provides.

MR MASTERMAN:  We would submit that would be grossly unfair to

a small plaintiff in an action against an insurance

company, an insurance company which, in accordance with

the practice of insurance companies in this State,

automatically filed an application for a jury, amended

immediately before the first trial to allege arson. It

was agreed that there would be trial by jury by both

people in November last year and the matter was then
fixed urgently for hearing in March, because of the

extraordinary delays.

This case is a disgrace to the New South Wales

judicial system and the manner in which this jury was

discharged on such a pretext. I do not know whether the

Court has had an opportunity to read the details of the

telephone conversation.

MASON CJ: Yes, we have had an opportunity to read it in so far

as it is set out in the materials.

MR MASTERMAN:  We submit that the questions - and if they are to

be even further postponed, if the questions we have set

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out in (a)(i), which His Honour Justice McHugh would

be familiar, in the bundle is His Honour's judgment

in the QANTAS V DILLINGHAM case and PECK V EMAIL, it

involves a question of applying the HOUSE V R principle

to the decision of His Honour. If that question is

even further postponed by this Court, again we submit

gross injustice will be suffered by the plaintiff.

This plaintiff will never be able to get a hearing ever.

McHUGH J:  Mr Masterman, if special leave is granted and the

appeal succeeds, it will mean that the delay has been

caused because you took a bad point which the Court of

Appeal upheld.

MR MASTERMAN:  This, as Your Honour will see - and perhaps I

should blush or wince at the - - -

McHUGH J: Yes, I did not think you would agree with everything

in these judgments.

MR MASTERMAN:  Yes, the judgment of Mr Justice Meagher, this

was the point formulated, a question of law, as

His Honour somewhat trenchantly with his well known

delicate language proudly says that I reluctantly

embraced it. The points that we did put up were good

points and they have not, to a large extent, been dealt

with. And if those points are to be postponed until

after the Court has indulged itself -

McHUGH J: This point that s1..m:ceeded was the court's point,

was it?

MR MASTERMAN: This was the court's point, yes, Your Honour.

We put it somewhat differently.

MASON CJ: What was your point?

MR MASTERMAN:  Your Honour, our points appear in the grounds of

appeal, the notice of appeal, which is document 4 in the

black book. His Honour Mr Justice Meagher's remarks,

of course, are at page 46 and it says - - -

MASON CJ: But is not ground 4 the point?

MR MASTERMAN:

With the assistance of the President, these

submissions were reformulated to include:

first, that there was no power to dispense

with the jury; secondly, that the judicial

discretion to discharge the jury had

miscarried; thirdly, that once ,a jury

has been discharged there was no power .....

These three submissions, reluctantly

i embraced by Mr, Masterman, must be upheld.

MASON CJ: But is not ground 4 in the notice of appeal your point?

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MR MASTERMAN:  Yes, Your Honour, except that we were putting t~2

argurrait on the basis of an argument developed from

what Mr Justice Samuels said in PAMBULA's case, an

unreporced decision of the Court of Appeal where

His Honour said there were two alternative streams,
two alternative modes of trial, and the emphasis

was on an election. If you look at the provisions

of the New South Wales SUPREME COURT ACT as distinct

from the provisions of other legislation, the big

distinction, of course, and those provisions are set

forth at No 7, and the big difference from the

United Kingdom and other State provisions is that the

two streams, two alternative modes of trial, as the

very experienced jury advocate, Mr Justice Samuels,

explained in PAMBULA were alternatives dependent upon

the election of parties and here there is no doubt

whatsoever that the defendant appellant elected to

have trial by jury. We as - - -

MASON CJ: That is not in contest.

MR MASTERMAN:  As we indicated-~n an affidavit which is

document 1, which is not the subject of dispute, the

facts are set out, we on the basis of that election

and the joint wish to have a trial by jury, in

paragraph 10 we say:

that Counsel for the Claimant conducted
the hearing of the proceedings on instructions

from the Claimant on the basis that the case

was being tried by a Jury. I say that

tactical decisions concerning the presentation

of the Claimant's case and in particular the

calling of witnesses - - -

Tl3 GAUDRON J: And you say all of that with what intended

consequence? What was the intend d. consequence of

your notice of appeal?

MR MASTERMAN:  I am sorry, Your Honour; that an election had

been made, the case had been conducted on the basis

of that election by both parties, that we would

suffer prejudice by not having called certain

witnesses, which is referred to at - - -

GAUDRON J: That goes to a question - I will put it this way,

Mr Masterman. Was this put on the basis that there

was no power in the trial judge to dispense with the

jury or on the basis of the exercise of discretion?

MR MASTERMAN:	The manner in which we developed the argument was that having regard to the factual circumstances
in this case, namely - and we had in mind
Mr Justice Samuels' formulation and that is the basis
of this affidavit which was read before the Court of
Appeal and not objected to - that an election was

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made by both parties, but in particular by the
defendant, to have a jury trial; that prior to the

commencement of that trial the nature of the

financial records had been produced on subpoena

and discovery and were well known to the defendant;
and that the case was conducted on that basis by both

sides. We did not call some witnesses because the matter was before a jury; we did not seek to amend the statement of claim because it was before a jury.

We submitted that on the basis of that, that factual fabric, there was no power to discharge the

jury, no power to dispense with the jury.

MASON CJ:	Mr Masterman, can I take you to page 19 of the
transcript of argument before the Court of Appeal.
Did you not clearly adopt a point put by Mr Justice Hope in argument that section 89 did
not confer a power to dispense with a jury after it
had been empanelled1 Look at the central question and answer on that p~ze.
MR MASTERMAN:	Yes, Your Honour, reluctantly as His Honour

Mr Justice Meagher says, because it was not at the

centre of our argument. We wanted this case to be

decided on the facts.

MASON CJ:  I know, but just to interrupt you once again, it

appears as ground 4 in your notice of appeal and

when the point is put by Mr Justice Hope you embrace

it. So you cannot escape from the consequence that

you embraced this point in the Court of Appeal.

McHUGH J: ·. In fact, reading the transcript I think it seems a

bit unfair to say that you reluctantly embraced it.

MR MASTERMAN:  A lot of things that are said by judges are

unfair; one has to bear the slings and arrows, even

if appearing in print.

We submit that this Court is entitled to have

regard to the justice of the situation, not merely to

decide - our account of the case, of course, is - - -

MASON CJ: No, but we must also have regard to the fact that

there is a decision on an important point of practice

which may have wide ramifications, that decision being

arguably incorrect.

MR MASTERMAN:  We would submit that this is a totally inappropriate

vehicle to determine that question and that it is

grossly unfair to a plaintiff that is in liquidation

and has limited means. The chronology - - -

MASON CJ:  Mr Masterman, you say it is an inappropriate

vehicle, but it is an appropriate vehicle in the sense

that the question is squarely raised, is it not?

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MR	"STERMAN:	It s the question of law on which the Court of

Appeal decided, despite efforts from us to the

contrary, to limit its decision to. We sought, as

the transcript will show, to deal with all these

other points, and as more foundation points, a

condition precedent to the exercise of the power to
dispense with a jury is that the documents should be

in some way unsuitable to be dealt with by a jury.

That is the first question that arises. It is

hypothetical and theoretical, it is an advisory
opinion, to start wondering whether one might - the

courts have power to dispense with juries under the

existing New South Wales legislation which can be

readily amended if the Court of Appeal's decision
does not accord with the intentions of the present

Parliament. It can be readily altered. We would

submit that here we have a plaintiff which has

suffered extraordinary delay, in which there is a

bizarre corrnnunication from an alleged employer of a

juror,about Mr Coombs' delays, he has used quite

improperly and witho~t any foundation at all to

discharge a jury after 11 days. It is a monstrous

example of a misuse of judicial discretion.

We would submit that the appeal is substantially

about costs and will add to the delay already suffered.

MASON CJ:	We have taken that on board from your written outline.
MR MASTERMAN:	If I can add to it, the Court of Appeal convened

its special leave application very quickly, it dealt

with the appeal. Now, the pressures on this Court are well known. This special leave application hG

taken some four months to come on.

MASON CJ:  We are fully familiar with the pressures on this Court.

We do not need you to expatiate on them, Mr Masterman.

MR MASTERMAN: Finally, Your Honour, we submit that as indeed,

I think, Mr Justice McHugh put to my friend, so far

as this matter is concerned - and this is what makes	it a purely advisory opinion of the High Court - so	far as this matter is concerned, the order of the
Court of Appeal provides for it to be remitted to the
corrnnon law list and my friend can then make his - if
he chooses - application to dispense with the jury
before the trial starts. That makes this question
entirely academic, it makes any decision, in our
respectful submission, of this Court to deal with it
unfair, both in terms of delay and costs to this
plaintiff, and we would submit that for those reasons,
without the Court necessarily endorsing the point of law or the manner of expressing it by the Court of
Appeal, this Court in its discretion can say, and should
say, that the existing orders do substantial justice between the parties; the matter is remitted to the

S1Tl3/3/RB	12	15/9/89
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common law list and can proceed expeditiously in

so far as one can attempt to get anything done

expeditiously, and the matter proceed on that basis
with this Court reserving, as is done in a number
of cases over and over in special leave applications,
the question of whether the point of law is correct

or not. One merely needs to - for example, in

FLETCHER AND OTHERS V COMMISSIONER OF TAXATION, which

is reported in Mr Solomon's - - -

MASON CJ: What good does that do, Mr Masterman? The decision

remains and it continues to be followed as a

precedent and that is what is significant in relation

to a question that may have continuing ramifications,

particularly in the area of practice.

MR MASTERMAN:	Your Honour, my friend is unable to give even one case where this has happened before. The whole
exercise of this discretion had nothing to do with
a judge half-way through a trial or three-quarters of the way through a ~rial deciding that the financial
information that was·before the court was unsuitable for a jury, it had everything to do with a
communication from an employer of a juror - - -
MASON CJ:	We know that.

MR MASTERMAN: It was taking into account of a totally

irrelevant consideration, that this judge discharged

the jury on the basis of a belief that he might now

decide the documents had somehow got too

complicated for the jury. We would submit that the

whole discretion and justice of this case involve

the matter being proceeded with as urgently as this

Court can give it aid, and with the matter being

remitted to the common law list to be dealt with

and the type of circumstances that have arisen in this

case are unique, bizarre and such as are never likely

to arise again. A question of them being some precedent, we would respectfully submit, does not

really arise and the legislature, with all the burdens

of this Court, can readily-

MASON CJ:	We have covered that.
MR MASTERMAN:	- - -if it does not agree with the decision of the Court of Appeal of this State, three judges
unanimously can, by a stroke of the pen, add the
words - - -

MASON CJ: You have mentioned that already.

MR MASTERMAN:  - - -before the trial or after the trial. I do

not think I can put anything further to the Court.

MASON CJ: No, I think that is correct. Thank you, Mr Masterman.

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Mr Coombs, there is one question I want to put to you and that is this: are you prepared to pay the

costs of the appeal in any event if you get

special leave to appeal?

MR COOMBS:  Your Honour, can I say something about delay before

I answer that question because what has been said

about delay is really quite unfair. In the meantime my learned junior will get immediate instructions to

respond, if I may.

Your Honours, this case was commenced in

November 1983 in the common law list. It could as

easily have been laid in the commercial division

where such cases are tried day in, day out. If it

had ''een laid in the commercial division it would

have been heard no later than March of 1985 and there

is an affidavit in the file to that effect. But the

case was not set down by the plaintiff until October

1986. More than two years and eleven months after it

was commenced just nothing happened except they

added another defendant somewhere along the way. Then

the matter can on in an entirely appropraite time,
having regard to its place in the common law list, as

opposed to its fast track in the commercial list.

There were documents produced on subpoena and

that was what led to the amendment and the short

adjournment between late 1988 and the hearing in

1989. Five years of the delay, Your Honours, can be

ascribed to the choices of the plaintiff and the

simple fact that there is a two year delay in the

common law list, if that is where you choose to lay

your case.

Your Honours, we would put that it would be

unfair in the circumstances to require the applicant to pay the costs of the appeal in any event. If the Court orders it, of course we will do it, but we

have no instructions immediately to make the

concession. We now have the necessary instructions,

Your Honours. If Your Honours deem it appropriate,

we will pay the costs of the appeal in any event.

MASON CJ: Thank you, Mr Coombs.

There will be a grant of special leave to

appeal and the Court will order that the applicant

pay the costs of the appeal in any event.

MR COOMBS: If the Court pleases.

MR MASTERMAN: Might I make an application for expedition of

the appeal, if the Court pleases.

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MASON CJ: You can make an application, Mr Masterman. I am

not sure what the outcome of it can be because

afterall the case has to be considered in terms of

competitive priority with a number of other cases

in the list.

MR MASTERMAN: That is what we fear, Your Honour.

MASON CJ: And the difficulty is to single out your case and

to say that it is to have priority over cases that

at the moment we cannot identify in any way. What

I can say is that we will bear this case in mind in

fixing the list but beyond that I think it is

impossible to go at the present time.

MR MASTERMAN: If the Court pleases. Might either we have an

order for the costs of this application, or

alternatively they be costs in the appeal?

MASON CJ: You do not need either. The costs of an application

for special leave are costs in the appeal when the

application is granteti.

MR MASTERMAN: If the Court pleases.

MASON CJ: And you have already got the benefit of an order for costs that you did not ask for in relation to the appeal.

MR MASTERMAN:  We are extremely grateful, if the Court pleases.

AT 3.12 PM THE MATTER WAS ADJOURNED SINE DIE

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