Nominal Defendant v GLG Australia Pty Ltd & Ors

[2004] HCATrans 466

[2004] HCATrans 466

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S334 of 2004

B e t w e e n -

NOMINAL DEFENDANT

Applicant

and

GLG AUSTRALIA PTY LTD

First Respondent

SALIM FAHD TLEYJI

Second Respondent

READY WORKFORCE PTY LIMITED

Third Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 NOVEMBER 2004, AT 10.16 AM

Copyright in the High Court of Australia

__________________

MR P.J. DEAKIN, QC:   If the Court pleases, I appear for the applicant in that matter with MR P.J. NOLAN.  (instructed by Sparke Helmore)

MR J.E. MACONACHIE, QC:   If the Court pleases, I appear with MR N.J. POLIN for the first respondent.  (instructed by Henry Davis York)

GLEESON CJ:   There is a certificate from the Deputy Registrar saying that she has been informed by the solicitors for the second and third respondents that the second and third respondents will submit to any order of the Court save as to costs.  Mr Deakin and Mr Maconachie, we have ‑

McHUGH J:   We have a reserved judgment in Allianz v GSF and, although it is concerned with section 3(a)(iv) of the Act, it is at least a possibility that the decision in Allianz will deal with the first two special leave questions in this case, or at least either by analogy or general principle would cover it.  That, of course, leaves the third question outstanding, but may not the proper course be to adjourn this special leave application until the judgment in Allianz comes down?

MR DEAKIN:   We would only have one thing to say on that proposition, your Honour, and that is that we would accept the first special leave point clearly is the Allianz point and, therefore, what your Honour puts to us is completely correct.  We have had the benefit of both the appellant’s written submissions and the argument that occurred before the Full Court in Allianz and we wanted to put a different argument as to the applicable meaning of the statutory policy to that which was advanced by the appellant in that matter dealing with the issue of what we have called the causation issue. 

We want to put the argument consistent with longstanding authority that the words should mean what they have always meant in the third party policy environment, namely a requirement for a direct and proximate cause.  As we understood the argument advanced by the appellant in the Allianz matter, a different proposition was put to the Court, namely that derived from the minority judgment of

Justice Santow which invoked this commonsense approach.  We accept what your Honour says in relation to our first special leave point – there is no answer to it – but we do submit that our submissions on what we have described as the causation issue ‑ ‑ ‑

McHUGH J:   I appreciate that you want to put that but it does not necessarily follow that the way a court will approach the matter will necessarily attract counsel’s argument.

MR DEAKIN:   Yes.  I suppose we want to put the argument.  If your Honours say we could deal with that argument ‑ ‑ ‑

McHUGH J:   But Allianz is going to come down before this case would ever be heard in the first place.

MR DEAKIN:   There is an outstanding application to expedite the hearing of the appeal too.  We are very grateful for the Court having expedited this application, but that would be the only way that what your Honour says would not occur, namely if there was sufficient expedition granted of the appeal, that it could be heard before the judgment in the Allianz matter was handed down also.

McHUGH J:   That would be close to a hopeless application.  Applications for expedition in this Court have little prospect of success.  There has to be something very exceptional about the case.

MR DEAKIN:   The only trouble also with what your Honour has put to us is that as I understood my learned friend’s submissions at least on the expedition application, he did not accept the proposition that a success by the appellant in the Allianz matter would flow through to likely success on our part in this case.  If my friend adheres to that position, then again that is a further answer to what your Honour is proposing because from the respondents’ perspective, whatever the outcome of the Allianz decision involving a different section of the relevant definition, would not determine the outcome of this case.

McHUGH J:   One of the problems is Chief Justice Gleeson did not sit on Allianz.

MR DEAKIN:   Yes, I appreciate that, your Honour.

McHUGH J:   If we granted leave here and the Allianz decision is in effect contrary to a view we might take about it as being arguable, the grant of special leave might have to be revoked.  There are all sorts of problems.  I really think myself the best course is to adjourn it until Allianz comes down.

MR DEAKIN:   The only one thing we would say in response to that, your Honour, is that the grant of special leave would not involve any expression of a view in relation to our prospects of this case.  It would only simply ‑ ‑ ‑

McHUGH J:   I know, but you have obligations under the rules in terms of forwarding the progress of the case and the expenses incurred.

GLEESON CJ:   What was the basis on which expedition was granted for the special leave application?

MR DEAKIN:   It was, to be honest, your Honours, largely because of the Allianz case that was raising the same issues and that we wanted to be able to ‑ ‑ ‑

GLEESON CJ:   You mean you wanted to get it on for hearing at the same time?

MR DEAKIN:   At the same time or at least the Court have the benefit of our submissions.

GLEESON CJ:   You wanted to put your oar in.  Let us hear what Mr Maconachie has to say about this.  By “this” I mean a suggestion that we stand the special leave application over until we have given judgment in Allianz, Mr Maconachie.

MR MACONACHIE:   The people for whom I appear just want to see the back of this case.  However, that which the Court has indicated we recognise assists the Court in the discharge of its onus obligations to look after a lot of cases.  However, we do not think that this case is likely to be answered by the outcome in Allianz but it might throw more light on it.

GLEESON CJ:   All right, then, we will stand this application out of today’s list, reserving questions of costs, and direct that the matter be listed again on the first special leave sitting day immediately following the delivery of this Court’s judgment in the case of Allianz. 

MR DEAKIN:   If your Honour pleases. 

MR MACONACHIE:   May it please the Court. 

AT 10.23 AM THE MATTER WAS ADJOURNED