Metro Edgley Pty Ltd & Anor v MK & JA Roche Pty Ltd & Ors

[2005] HCATrans 671

[2005] HCATrans 671

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S213 of 2005

B e t w e e n -

METRO EDGLEY PTY LIMITED

First Applicant

MULTIPLEX LIMITED (FORMERLY MULTIPLEX CONSTRUCTIONS PTY LTD)

Second Applicant

and

MK & JA ROCHE PTY LIMITED AND MICHAEL KEVIN ROCHE AND CHRISTOPHER JOHN ROCHE AND WILLIAM TIMOTHY ROCHE AND KEVIN MICHAEL ROCHE AND GABRIELLE MARY ROCHE

Respondents

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 SEPTEMBER 2005, AT 11.27 AM

Copyright in the High Court of Australia

__________________

MR C.R.C. NEWLINDS, SC:   May it please the Court, I appear with my learned friend, MS R.S. FRANCOIS, for the applicant.  (instructed by Clayton Utz)

MR HAMMERSCHLAG, SC:   May it please your Honours, I appear with my learned friend, MR V.F. KERR, for the respondents.  (instructed by Lane & Lane Lawyers)

GUMMOW J:   Yes, Mr Newlinds.

MR NEWLINDS:   If your Honours were to grant leave, the appeal in this matter would raise three issues.  Two of them, we suggest, are very worthy candidates for a grant of special leave.  The third, that is the question of election and whether there was sufficient findings by the trial judge, perhaps does not fall squarely within that category.  In relation to that third issue, election, what we would say is it is very short and it really would involve the Court looking at no more than I think two paragraphs of the trial judge’s findings and forming a view as to whether they are sufficient to justify ‑ ‑ ‑

GUMMOW J:   The case is not finished yet.  At the moment there is an order of remission with the Equity Division, is there not?

MR NEWLINDS:   Correct, and it would be open to this Court to take that course as well if it got to the point of the election ‑ ‑ ‑

GUMMOW J:   It is also open to us to wait and see what happened.

MR NEWLINDS:   Well, it would, your Honour, but I do not know if your Honour picked up ‑ ‑ ‑

GUMMOW J:   So that it is all washed up.

MR NEWLINDS:   Yes.  Well, that is, if I may say so, a very sensible suggestion.  If your Honour goes to page 61 of the book, your Honour will see that we filed our application for special leave and at the same time went back to the Supreme Court and asked for the Supreme Court to determine the matters that had been remitted.  My learned friends opposed that course and said that this application should go forward first.  We had a debate and Justice Einstein found in favour of the respondent.  So at the moment the Supreme Court will not let us proceed with the remitter aspects of the matter and if we do not proceed with this at this stage ‑ ‑ ‑

GUMMOW J:   What was the basis of the Supreme Court not getting on with it?

MR NEWLINDS:   Mr Hammerschlag’s advocacy perhaps, your Honour.  It was certainly contrary to the submissions we put.  The Supreme Court is very busy, as your Honour knows.

GUMMOW J:   Yes, we are busy too and our busyness happens to take priority over theirs.

MR NEWLINDS:   Your Honour, it is true to say that if we go back to the trial judge and win on the remitted issues then we win the case.  I accept that.  That is why we thought it was appropriate to go forward in that jurisdiction first.  That jurisdiction will not let us and so we come here.  Now, it would be open to your Honours to adjourn this application and to say something that might encourage the Supreme Court to hear the rest of the case.

GUMMOW J:   We were wondering about that.  What would be the practical effect though of us adjourning this application?

MR NEWLINDS:   Well, at the moment nothing because we have not appealed from Justice Einstein’s second judgment, or we have not sought leave to appeal.  So unless his Honour could be persuaded that by your Honours’ actions he should now proceed to hear the rest of the case ‑ ‑ ‑

GUMMOW J:   But orders are made at page 115, are they not?

MR NEWLINDS:   They are indeed.

GUMMOW J:   Now, if we refuse to act at this stage, the implementation of those orders goes ahead, does it not, including order 4?

MR NEWLINDS:   That is true, your Honour, although Justice Einstein, who based his decision to not do anything in the matter as a matter of case management, may still not be persuaded that he should proceed.  But I have no doubt ‑ ‑ ‑

GUMMOW J:   Plainly…..by that phrase.

CALLINAN J:   We have certain powers.

MR NEWLINDS:   I understand that, your Honour.  I am not arguing against what your Honours are suggesting.  It was our position ‑ ‑ ‑

GUMMOW J:   But where are Justice Einstein’s reasons?

MR NEWLINDS:   They start at page 61.  The actual reasoning is at 69, starting at the bottom of 68, “Decision”.

CALLINAN J:   How quickly would the matter get back on, if it did go back on, in the Equity Division?

MR NEWLINDS:   I would have thought certainly this year.

CALLINAN J:   Assuming you could get special leave here, you would not get a decision, I would not think, here before the middle of next year.

MR NEWLINDS:   I understand that, your Honour.  That was pointed out to his Honour.

GUMMOW J:   Is there some order that his Honour made?

MR NEWLINDS:   No.

GUMMOW J:   Look at page 63:  The issue . . . [is] whether or not this Court should proceed”.

MR NEWLINDS:   Yes.  Now, the answer to that issue from his Honour was, “No, it shouldn’t”, but of course that does not turn into an order.  He has just declined to make any directions.

GUMMOW J:   Yes, all right.  Yes, Mr Newlinds, what else do you want to say?

MR NEWLINDS:   What would be said against that course is if the matter was remitted to the trial judge and if we were successful, then this decision of the Court of Appeal would stay on the books as authority for the two propositions which, as we have tried to outline in our written submissions,

we say is contrary to long-standing authority in both regards.  It may be that this Court would be interested in rectifying what we suggest are errors on two reasonably important topics in any event.  Now, I can develop that, your Honour, but if your Honours are ‑ ‑ ‑

GUMMOW J:   I think we will hear from your opponent.

MR NEWLINDS:   If your Honour pleases.

GUMMOW J:   Yes, Mr Hammerschlag.

MR HAMMERSCHLAG:   As your Honours have remarked, the current status of these proceedings is that the Court of Appeal has remitted them to the Equity Division for the further determination of factual matters, which may resolve the proceedings.  Also there are further other matters that have been remitted which are not the subject of the appeal.  His Honour did not deal with the question of the guarantors and so on and so forth.  Then there are additional factual and legal issues concerning the arrival of the ultimate sunset date.  Your Honour would have read ‑ ‑ ‑

GUMMOW J:   Yes, we know about that.

MR HAMMERSCHLAG:   Which in themselves may resolve the proceedings.  There is also the questions of the relief which would flow and so on and so forth.  As your Honours have read, the Court of Appeal judgment was threefold.  There is a finding on a construction matter which we say is clearly correct in any event.  There is a finding on the terms and effect of a letter of 21 May 2004, which we submit is clearly correct in any event and is not a special leave question.  Thirdly, there is a question about whether sufficient factual findings have been made, and that is not an appropriate question.  I think my learned friend accepts that.

In our respectful submission, all that will happen is, if your Honours reject this application, the matter proceeds in the Equity Division immediately.  We will not be heard to be saying anything against that.

GUMMOW J:   One question that entertains us both at the moment is, looking at order 4, one asks one’s self what is the utility today of adjourning Mr Newlands’ application, because order 4 will be spent if the Supreme Court gets on with it.

MR HAMMERSCHLAG:   None, and we would say in addition to this, we do not apprehend that my learned friend loses his rights of appeal on ‑ ‑ ‑

CALLINAN J:   There is no issue estoppel in relation to any of these matters by the rejection ‑ ‑ ‑

MR HAMMERSCHLAG:   No, not at all.  He has an appeal subsequent point and he would have to bring that at some later date.

GUMMOW J:   Yes.

CALLINAN J:   And no question could be taken about his not appealing or applying within time.

MR HAMMERSCHLAG:   No.

CALLINAN J:   You would not seek to take any point on that, would you?

MR HAMMERSCHLAG:   No.  There is not one to be taken, I do not think.

CALLINAN J:   No.

MR HAMMERSCHLAG:   If there was one, I would take it, but I do not think there is one.

CALLINAN J:   Well, the price of it all might be that you would not be allowed to take it.

MR HAMMERSCHLAG:   Either way, I am not taking it.

CALLINAN J:   Whether it is available or not, for my own part, I would like it to be clear ‑ ‑ ‑

MR HAMMERSCHLAG:   Yes, that that point ‑ ‑ ‑

CALLINAN J:   ‑ ‑ ‑ that the rejection of the application for special leave today would not result in any application by you, or any stance by you, that any further application for special leave would be out of time.

MR HAMMERSCHLAG:   We would not take a point that by reason of this dismissal, if your Honours so dismiss it, my learned friend is in any worse position than he otherwise would have been.

GUMMOW J:   Very well.  That is an important point.

MR NEWLINDS:   Can I just say this, your Honour.  Your Honour understands that order 4 directs the matter back to the trial judge to determine the conventional estoppel issue on the law as articulated by the

Court of Appeal; in other words, to look for inducement and detriment.  If we were given leave and succeeded on the appeal, we say they are not necessary ingredients, but I accept, your Honour, that if we could persuade the trial judge to make those findings of fact we can win the case.  If your Honour pleases.

GUMMOW J:   What do you both say about costs of this application if we were to dismiss it today, and to note what Mr Hammerschlag said about any future application and to indicate our firm view that the Equity Division should proceed as required by order 4 at page 115 forthwith?

MR NEWLINDS:   I would ask your Honours to reserve the costs to abide ‑ ‑ ‑

GUMMOW J:   To what occasion?

MR NEWLINDS:   To abide the conclusion of the litigation, which will either be by us succeeding before the trial judge or the Court of Appeal again or by an unsuccessful grant of special leave or a successful grant of special leave.

GUMMOW J:   That involves returning here though, does it not?

MR NEWLINDS:   At some stage, yes.  We will only return here if we lose back in the Supreme Court, but it does not mean we will not be returning in any event.

GUMMOW J:   Another possibility is to make them costs in the cause in the Supreme Court.

MR NEWLINDS:   I would not argue against that, your Honour.

GUMMOW J:   Yes.

MR HAMMERSCHLAG:   Our submission is that my learned friend should pay the costs, your Honour.  Can I say something in defence of Justice Einstein in that respect.  The case is not finished and my learned friend has not achieved anything more than he otherwise would have achieved and the position is in the course of that the remitter may mean that this application was otiose in any event.  If we succeed on the sunset date questions, then we should not have been here in the first place and he has not achieved anything by it.

GUMMOW J:   Yes, Mr Newlinds.

MR NEWLINDS:   The ultimate sunset date argument is a different case.  Sure, it may be picked up in this case, but it was us who, before the Supreme Court, was pressing to have everything dealt with there before we came here.

GUMMOW J:   Yes, that is right.

MR NEWLINDS:   So Mr Hammerschlag has in fact ‑ ‑ ‑

GUMMOW J:   Thank you.  We note what Mr Hammerschlag has said as to the future conduct of any further special leave application that might be forthcoming in this matter at some later stage.  We indicate our firm view that the Supreme Court should proceed as required by Order 4 of the orders of the Court of Appeal set out at page 115 of the application book. 

The present application for special leave is dismissed.  The costs of that special leave application, however, will be costs of the cause in the Equity Division.

AT 11.39 AM THE MATTER WAS CONCLUDED