Paringa Mining & Exploration Company Plc v North Flinders Mines Limited

[1988] HCATrans 230

IN THE HIGH COURT OF AUSTRALIA

Registry No Cli of 1988

B e t w e e n -

PARINGA MINING & EXPLORATION

COMPANY PLC

Applicant

and

NORTH FLINDERS MINES LIMITED,

C.L. MAY MELLOR LAING &

CRUICKSHANK LIMITED,
GEOFFREY HUGH STEWART,
JOHN JOSEPH den DRYVER,

CLEMENS FREDERICK WEGENER,

PETER RICHARD MITCHELL,

DEAN WILFRED HOSKING

Respondents

Application for interim

injunction

Paringa

WILSON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 12 OCTOBER 1988, AT 12 NOON

Copyright in the High Court of Australia

C3Tl/l/ SH 1 12/10/88

MR T.A. GRAY, QC:  May it please the Court, I appear with

my learned friends, MR C.N. BAGOT, and

MR I.J. NICOL, for the plaintiff applicant.

(instructed by Piper Alderman)

MR G.J.D. RICHARDSON:  May it please Your Honour, I appear

- - for the first respondent, North Flinders Mines

Limited, and for its directors who are named as

the third to seventh respondents inclusive.

(instructed by Baker O'Laughlin)

MR P.C. HEEREY, QC: If Your Honour pleases, I appear with

my learned friend, MISS N.F. MORRIS, for the

second defendant, C.L. May Mellor Laing &

Cruiakshank Limited. (instructed by Fisher Jeffries)

MR P.R. HAYES: If Your Honour pleases, I appear for the

intervener, Australian Development Corporation.

(instructed by Mollison Litchfield)

WILSON J:  Now, Mr Gray, as you may have been advised, I

have another case to proceee at noon. I am

concerned simply, at this moment, to arrange for
a hearing of your application and to do so in

such a way that one can maintain the status quo

until it is heard.

MR GRAY:	Yes, Your Honour. We are naturally available
whatever time the Court can hear us and we do seek - - -
WILSON J:	I would hope I would be available at 2.15 pm.
MR GRAY:	Yes.
WILSON J:	The stay of the order made by Mr Justice Toohey

I understand is until 2 'pm today.

MR GRAY:  Yes, Your Honour.

WILSON J:	Do you have any application to make?
MR GRAY:	Yes, we do.	We have an alternative application

either for a continuing of that - an order in
the nature of a stay until this matter is disposed
of before Your Honour or, alternatively,

interium injunctive relief until the matter be

disposed of. Either way would protect my client

until Your Honour has heard our argument.

(Continued on page 3)

C3Tl/2/SH	2	12/10/88
Paringa
HIS HONOUR:	Thank you.	I will hear Mr Richardson.

MR RICHARDSON:  Your Honour, any such order is opposed,

and I will not go into the detail of it, but
for these reasons, if I may summarize them: the

order made by Mr Justice Toohey yesterday was

-not an order until further order, and Your Honour

will see that he discussed whether he would or

would not make such an order and felt it was

inappropriate to do so. His order was made merely

to allow a fresh application to be made. So

my submission would be, with respect, it would

not be appropriate to extend any stay but for

Your Honour merely to consider whether there would be now an interim injunction.

On an application for an interim injunction,

Your Honour, my submission would be that not

even an interim injunction should be granted,
for two reasons: firstly, the substantive issue

as to whether there should be an injunction has

now been decided, not only by the judge of the

Supreme Court of South Australia, but more

particularly, by Mr Justice Toohey, and the issues

raised in this matter are identical; or secondly,

and in so far as this is an application for leave

to appeal against a fresh decision not to grant

an injunction by Mr Justice Legoe, the application

is doomed for precisely the reasons given by

Mr Justice Toohey in his decision yesterday.
My submission is that there is no justification

for granting an interim injunction even, at this

stage.

HIS HONOUR:  You may well be right, Mr Richardson, in

what you have said. The difficulty is that

if I do not at least maintain the status quo

until I have heard what the applicant says, I

am rather pre-judging the success of the application.

It may be as you have said.

MR RICHARDSON: Well, I put it the other way, with respect,

Your Honour. I say this: that at the moment,

something will occur at 2 o'clock. The onus is

on the applicant to persuade Your Honour that

something should be done by Your Honour to prevent

that occurring, and that there is nothing that

they can say to maintain even the status quo.

That is all I can say without developing the

argument further, Your Honour.

HIS HONOUR:  Yes. Mr Heerey?

MR HEEREY:  Your Honour, we respectfully adopt what our

learned friend has put to Your Honour. We

say that this is an attempt in the teeth of the

C3T2/l/JM	3	RICHARDSON	12/10/88
Paringa

considered judgment of Justice Toohey, after

two days of argument, to again have this Court

take up the role of monitoring and supervising
various stages of litigation which are currently

in progress in the Supreme Court of South Australia

and we say it should be rejected at the outset.

HIS HONOUR:  Yes, thank you. Mr Hayes.

MR HAYES:  We have little useful to add, Your Honour.

We would say that this is a tactical application

and that really the original interlocutory injunction

first somght by the applicants back in late

September has been effectively obtained by a

series of continued applications of appeals and that

this application is really designed for a tactical

advantage, and that a fresh application should

be made before any further injunction is granted.

HIS HONOUR:  Thank you, Mr Hayes. I need not call on

you to reply, Mr Gray. It seems to me that if

I am to give any credence to this application
I should at least give you the opportunity to

be heard on it and that to enable that to be done

I would grant an interim injunctive relief to

last only from 2 pm till 6 pm Eastern Standard Time

today.

MR GRAY:  Yes. Your Honour, there are some minutes of

order that we seek and we seek an interim order

in those terms until that time.

HIS HONOUR:  I do not want to waste time on the detail of

the order. It is truly a saving order without any consideration really of the likely success

that will attend your application.

MR GRAY:	We understand that quite clearly, Your Honour.
HIS HONOUR:	Yes.

MR GRAY:  Could I just raise this with Your Honour, that

in terms of avoiding the need to draw up and

serve, or give notice of that order, whether

I could have my friends indicate from the bar table

that they would treat all of the defendants in

the proceedings as having notice of the holding

position?

HIS HONOUR:  It certainly would be difficult to - in view

of the temporary nature of it, perhaps I could

invite counsel to indicate their position.

MR RICHARDSON:  The words spoken in Court is sufficient

notice, Your Honour. I take it Your Honour would

require the usual undertaking as to damages, even

in relation to the interim order?

C3T2/2/JM	4	12/10/88
Paringa

HIS HONOUR: Certainly.

MR GRAY:	I am instructed to proffer that undertaking
to the Court.
HIS HONOUR:	Yes, the order is on the undertaking as to

-damages.	I am sorry, I did not make that
clear.	We will adjourn this matter until 2.15 PM.

AT 12.07 PM THE MATTER WAS ADJOURNED

UNTIL THE SAME DAY

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Paringa

UPON RESUMING AT 2.18 PM:

HIS HONOUR:  Mr Gray, before you start, could I just say

one thing.I am sure you are already aware of

--and that is that in no circumstances am I

embarking on an appeal from my brother Toohey.

MR GRAY:	No, we are aware of that and we do not advance such an argument, if Your Honour pleases.
HIS HONOUR:	That rather suggests that you will be addressing

yourself then to changed circumstances that have

supervened.

MR GRAY:	Yes, indeed, and in regard, in fact, to a new
matter that was not before Justice Toohey and
could not be before him because it occurred after the events that he was concerned with but a matter
that must be considered against the ba€kground
of the earlier curial events.
HIS HONOUR:	I will leave to your judgment, at least initially,

how much of that background you can take for

granted. 1 certainly have some familiarity with

it and I have read the reasons for judgment of

Justice Toohey.

MR GRAY:  Thank you, Your Honour. Your Honour, could 1

just start with one short observation. On

30 September, something very incongruous happened

in this matter.

HIS HONOUR:  A lot of incongruous things have happened

in this matter.

MR GRAY:	Yes. This one is particularly so, if Your Honour
pleases.  And Justice Legoe ordered a trial of
this matter which is, from any view, a very major
commercial cause involving many tens, if not
more, millions of dollars, oh one week!s working
notice and within something like 20 days of the
particular resolutions complained of - that,
in itself, is an unusual feature.- but then declined to hold the status quo in the interim period.
And we say that that incongruity, that is of
bringing a matter of this to trial on such short notice and then to refuse any interlocutory relief in the interim,is an incongruity that cries out for some explanation and we say that it is a
little like those casesthat Your Honour would
be aware of in the damages field, of excessive
damages, arid the Lord Denning test, the goodness me
test, something is wrong.  And we say that incongruity
spells out that something is awry in this matter.

C3Tl8/l/ND	6	12/10/88
Paringa

I move from there to identify to Your Honour

the new matter that has arisen. Could Your Honour

take up the affidavit of Katherine Jane Williams

and turn to clause 1.20 that Your Honour will

find on page 10. Your Honour, I read paragraph 1.20

because it does lead directly into the matter

--that we presently complain of:

After having given notice by telephone on

10 October of its intention to do so on

11 October when the trial of this matter

was called on before Justice Legoe, counsel

for Paringa made application to His Honour

to be heard on an application dated

11 October for interim relief during the

trial.

Your Honour, this document has been .prepared under

circumstances of great pressure and there are

a number of typographical mistakes and I would

ask Your Honour to excuse those in the circumstances.

If Your Honour pleases, shortly put, at the start

of the trial there was an application that

His Honour hear an application for interlocutory

relief pending the trial. Counsel for the

defendants and the intervener applied for a short

adjounnment to consider the application as

supporting the affidavit of Mr Burke. That

affidavit is exhibited to Williams' affidavit.

This was granted and the matter resumed at 12,noon and counsel for Paringa consented to the adjournment.

(Continued on page 8)

C3T18/2/ND	7	12/10/88
Paringa
MR GRAY (continuing):

Mr Myers, then representing the

director defendants, addressed first.

He rose first and he opposed the hearing

of that application and the primary ground,

if Your Honour pleases, was that it was a

tactical ploy to delay the trial. That

allegation was refuted. Mr Myers'

opposition was supported by all other

counsel for the defendants and for the

intervener.

In the course of argument on this

issue, Gray undertook to open the case

for Paringa forthwith and argue the

interim relief question that evening

after the usual adjournment hour provided

Paringa had interim protection to that

could happen -

To demonstrate our bona £ides about proceeding

to the trial. W3 were happy to start straight

away. The trial continues today. Evidence,

I understand, is being called today.	We do not
want to delay the trial.	We want it to go on

but, to answer the allegation of delay, we made

that offer and we gave that undertaking.

When Gray attempted to reply to the

submissions by counsel for the defendants

that Paringa was seeking to delay the
start of the trial, His Honour said words

to the effect of, "I don't want to hear you

on that, Mr Gray." Justice Legoe did not

respond to the offer put to open straight

away and deal with the injunction that

night but instead he entertained an

application by the defendants opposing the

raising at all of the application.

And the defendants put their submissions.	I was
called on.	I was arguing the matter at 1.20 pm
and I was stopped.	My submissions had not finished

and His Honour said that - - -

WILSON J:  I am sorry, Mr Gray, if His Honour said to you,

"I don't want to hear you on that", did that mean

that he was rejecting the submission made by

counsel for the director defendants in opposition

to the hearing of the application on the grounds

it would delay the trial?

MR GRAY:	Yes, we understood that to be so. That we take to be the natural inference to be drawn from that comment and we did not, thereafter, address on
the question of the accusation of delay and -

C3Tl9/l/SH	8	12/10/88
Paringa

WILSON J: Well, what happened precisely after that

statement?

MR GRAY: Well, after that, I then proceeded to put

submissions to His Honour as to why it was

His Honour should allow us to pursue the

application for interlocutory relief before

the trial started.

WILSON J: Yes.

MR GRAY:	And I was essentially saying to His Honour
that the application raised new matters, new
matters that showed that early material put before His Honour was false. There had been
deliberate and wilful non-disclosure of material
by the defendants, all going
to the question of serious question to be tried
and there were also new factors as to the balance
of convenience.

His Honour stopped my submission that

His Honour should hear that application before

it had been completed - we say in circumstances

that amounted to a denial of natural justice.

His Honour said he would not now entertain the

application. He said that he refused to hear

the application and he, in effect, directed or he required the plaintiff to commence to open

this case ii..anediately after the luncheon

adjournment.

Now, if Your Honour pleases, we complain about that decision. We say that His Honour's

refusal, in those circumstances, to entertain an

application for interlocutory relief pending

trial in circumstances, we said, of new material

and significant information that raised allegations

of His Honour being given false information by

affidavit earlier and preparedto demonstrate

before His Honour then and there. it was very material

His Honour took the view that he would not hear

the application. He would not even hear the

submission out in full and directed the plaintiff

to open the case.

Now, then, just to take Your Honour through the

chronology, that is yesterday and - - -

WILSON J: And that is the decision in respect of which an

application for special leave is now being sought.

MR GRAY:  Yes, and if Your Honour - - -

WILSON J: It ~s a judgment?

MR GRAY:  Yes, it is a refusal of the court to hear an application.
So it amounts to an order or judgment of the court.

C3Tl9/2/SH 9 12/10/88

Paringa	(Continued on page 9A)
WILSON J:	In terms of the JUDICIARY ACT, the -
1:1R GRAY:	Yes. We say that it amounts to a decision by a judge refusing to hear an application - - -

WILSON J~ It has to be more than a decision, does it not?

1:1R GRAY:  Yes. We say it amounts -

WILSON J: It has to be an order.

1:1R GRAY:	Yes. We say it amounts to a judgment or order. His Honour made an order that he would not hear
the application.  He would refuse the application
to have an interlocutory argument put to him.

(Continued on page 10)

C3Tl9/3/SH	9A	12/10/88
Paringa

HIS HONOUR:	Yes, anyway, continue.
MR GRAY:	And thereafter, if Your Honour pleases, Mr Lander QC
was left to open the case before His Honour
Mr Justice Legoe with another junior and I have come
to Canberra to take up matters here in an attempt
to protect my client's position from what we say is catastrophic consequences that will flow if
we are left without injunctive relief.

HIS HONOUR: There is a necessary further step in the narrative

which I think is covered, but you should just advert

to it - - -

MR GRAY:  Yes.

HIS HONOUR: - - - and that is the attempt to go to the

Full court.

MR GRAY:	Yes, if your Honour pleases, that matter was dealt
with as recently as this morning and if Your Honour
turns to page - effectively, an approach was made
to the associate to the Chief Justice this rrorning and the answer
was that at the earliest the matter could not be heard by the South Australian Full Court until
November. That is at the earliest and that is
deposed in his affidavit and I will turn up the
paragraph shortly for Your Honour.  On page 12
at 1.24:

At approximately 10.30 am Eastern Standard

Time -

that is today -

I was informed and verily believe that a

request made to the Chief Justice of

South Australia on behalf of the plaintiff

via his associate, for an urgent convening

of the Full Court to hear an application

for interim injunctive relief pending appeal and

an appeal against the order of the

Honourable Justice Legoe of 11 October,

would not be possible and the Full Court

could not hear the matter until November 88

at the earliest.

I can indicate to Your Honour that, in fact, at my

direction a senior solicitor from the instructing firm

made the approach; he approached first an administrative

officer of the court; he was then put on to a listing

clerk and he then went directly to the associate to

seek a definitive answer so that we could inform this

Court of the position. The other matter, perhaps,

to complete the picture, if Your Honour pleases, is

that there has been a direction and it has been deposed

to that - by the Chief Justice in South Australia - that

Justice Legoe is to hear all interlocutory matters in

C3T20/l/VH	10	12/10/88
Paringa

regard to this commercial clause. So the plaintiff

is left in the invidious position of having nowhere

to go in South Australia to have an application for

pressing and urgent interlocutory relief heard, and

it is accordingly - it says "for very special

reasons" coming to this Court to seek a court to

--hear an application for relief.

HIS HONOUR:	Of course, an application for interim relief can be made repetitively at any time, so that - - -
MR GRAY:	Yes, it can. Quite plainly, it is a practical waste
of time to go back to Justice Legoe. We have been
back to him now three times - two further times since
yesterday morning. If Your Honour pleases, could I
pass to Your Honour an affidavit that my learned friends recently had notice of, of Anthony Norman Abbott,
sworn today in regard to events of this morning. I
have only a fascimile copy, we undertake to file the original in due course. It deals with the events of
an application this morning to Justice Legoe in the
light of Justice Toohey's decision to hear our
application as the trial judge for interlocutory
relief. Could I pass it to Your Honour - that
affidavit?
HIS HONOUR:	Yes, perhaps you ought to - it is the only copy,

is it'?

MR GRAY:  No, my friends have a copy.

HIS HONOUR:  Good, thank you. So that a further application -

approach has been made to Mr Justice Legoe this

morning?

MR GRAY:	Yes. Before Your Honour reads that, can I go back?
The first application was made at the start of the
trial at 10.15 yesterday. Another application was
made at 2.30 yesterday when news of the special
leave listing on Friday in Melbourne was available
and His Honour refused to deal with that. And then
the application was sought to be renewed this
morning after His Honour had had made available to him some t:im:earlier the reasons of Justice Toohey.

I take you to Mr Abbott's affidavit; he was

present in court this morning. Mr Lander made an application to the trial judge to be heard on the

interlocutory application of Paringa which was filed

the previous day; Mr Lander said that to make the

application ~ld be on the same grounds , upon the same

basis as had been made the day before.

HIS HONOUR:	That rather suggests that you were heard yesterday.
MR GRAY:	Were heard?
HIS HONOUR:	Yes, because it is sufficient, apparently, for His Honour

to be addressed this rrorning that the application is ma.de on the

same grot.m.ds and upon the same the basis.

C3T20/2/VH	11	12/10/88
Paringa
MR GRAY:	Yes.	It wa~ but His Honour stopped us before

we had developed the matter. We were stopped

in the course of our submissions yesterday morning

and Mr Lander rose this morning and said that

he wanted to, in effect, renew that application

and he was going to be putting to His Honour the

--same matters that were going to be put yesterday -

were put and going to be put. We wanted to pursue

the same application for interlocutory relief

and we were iriviting him to do so in the light of

Justice Toohey's reasons for decision. And if Your Honour pleases,it is quite plain, we would

suggest, from the remarks made during the course

of argument before Justice Toohey and from

His Honour's reasons that His Honour was very

keen to see that the trial judge who proceeds with

the trial have the opportunity to exercise the

interlocutory jurisdiction available to him.

T~e most extraordinary thing is that we

cannot even get an application heard. We are,

by the Chief Justice's directio~ limited to one
judge in South Australia and, again, by the

Chief Justice's direction unable to get a

South Australian appeal court to deal with the

matter. So I identify that as being the further

decision in respect of which we will be seeking

special leave on Friday in Melbourne if time permits.

As I understand the matter,if Your Honour pleases,

the matter is to be listed last in the list in

Melbourne and will be heard if time permits but

the expectation is that time will permit.

HIS HONOUR:	So how many applications is that?
MR GRAY:	There are nine applications in the list but two
of them are double applications.
HIS HONOUR:	No. I mean on behalf of Paringa.

MR GRAY:  Your Honour, there are two applications. The

first in respect of two orders, the second in
regard to one.	So there are three orders of the

court that are sought to be challenged but the - - -

HIS HONOUR:	There are the ones that were before me last week.
MR GRAY:	Yes.
HIS HONOUR:	Was that one or two?
MR GRAY:	Two.
HIS HONOUR:	And there is the one in respect of yesterday's decision. I thought I understood you to say there
would be a further one in respect of this morning.

C3T21/l/AC	12	12/10/88
Paringa
MR GRAY:	No.	That may be possible - - -

HIS HONOUR:  I do not want to put the idea in your head,

Mr Gray. It is the last thing I want to do.

MR GRAY:  Your Honour, it is there now. If Your Honour

--pleases, we would have thought that that would

probably be unnecessary but we would only pursue

that if it became necessary. This morning's

exercise was to appraise His Honour of the remarks

of Justice Toohey in the hope that His Honour

would exercise the jurisdiction that Justice Toohey

had plainly indicated that he had available to

him. And we are, if Your Honour pleases, meeting,

shortly put, in this regard a closed judicial

mind. We cannot get a hearing an~ if Your Honour

pleases,in the circumstances of the 11th when

we were stopped from putting a submission as to
why we should be heard we say that in the circumstances

amounts to a denial of natural justice bearing

in mind our undertaking to open the case forthwith,

and given a short interim order to protect us,

argue the matter that night without any delay

to the trial at all.

Now, if Your Honour pleases, could I go from that to the special leave points that we

say we identify. If Your Honour turns to paragraph 3,

pages 13 to 16 of the affidavit of Williams -

now, if Your Honour please~ we hope with a little

bit of time before Friday that we will have the

opportunity to perhaps hone these a little and

make them a bit more attractive but the gist of

the special leave points Your Honour will find

identified.

HIS HONOUR:	These are, of course, confined to the present applicatior
MR GRAY:	They are but they also do, because we want to
link matters together,raise some matters that
come from the earlier orders.  The matters, if
Your Honour pleases, cannot be viewed strictly in
isolation as we are about a course of curial conduct that to understand must be seen in its context
and there is a cumulative effect in regard to
certain matters - one that I will identify for
Your Honour in a moment. Your Honour will see
that the first reason why we say special leave
should be granted is that it is in the interests
of the administration of justice that requires the consideration by the High Court of the judgment
and order to which the application relates. The
plaintiff claims the actions of the defendants have
infringed and will infringe its substantive ri8hts and have
caused harm and will, unless restrained, cause
irreparable harm.

C3T21/2/AC	13	12/10/88
Paringa

MR GRAY (continuing):  Your Honour, although we are concerned

with interlocutory injunctive relief,in the particular

circumstances of this matter its refusal is going to

permanently deny us our substantive rights. So we

are not concerned with mere practice and procedure,

we are here concerned with orders that do finally

di~pose of substantive rights as a matter of fact

in the circumstances of this case. We pick up that

distinction in the judgment of Chief Justice Jordan,

referred to by Justice Toohey with approval, at

page 8 of his reasons.	Does Your Honour have those
reasons before you?

HIS HONOUR:	Yes, I have them.
MR GRAY:	If Your Honour moves to page 8, in the final

paragraph, Your Honour will see reference is riade
to the ADAM P. BROWN MALE FASHIONS' case, and then

there is reference to the case IN RE THE WILL OF

F.B. GILBERT, and it is a useful distinction, in

our respect submission, to bear in mind.

I am of opinion that, ... there is a material difference between an exercise of discretion

on a point of practice or procedure and an

exercise of discretion which determines
substantive rights.

Now, it is in the former case that there is great difficulty in getting a review but we have here,

if Your Honour pleases, a case where we have an exercise

of discretion which,if left as it stands,is going

to determine once and for all, very quickly, my

client's rights against it.

HIS HONOUR: 

Only if damages would not be a suitable remedy, and sufficient remedy?

MR GRAY: 

Well, Your Honour, that, with respect, is rather

clear in this case we say,for these reasons.
Your Honour will find attached as an exhibit to

William's affidavit the statement of claim that has

been filed.  Could I just invite Your Honour's

attention to that. It is exhibit -

HIS HONOUR: 

By the way, what is the PLC in Paringa's name?

MR GRAY: 

It is the UK denomination of a company,

Your Honour. Paringa is an English based company

that is registered, I think, in Melbourne.

HIS HONOUR:	And it is listed on the public stock exchanges?
MR GRAY:	Yes.
HIS HONOUR:	It is a public company?
MR GRAY:	It is a public company, as too is North Flinders,

as is ADL. They are all public companies listed -

C3T22/l/MB	14	12/10/88
Paringa

HIS HONOUR:	How many shareholders has Paringa got?
MR GRAY:	Some thousands is the only answer I can presently

give, Your Honour. If Your Honour wants a precise

answer I can obtain that, and likewise, some thousands

o.f_shareholders in each of the companies, almost

5000 in ADL.

HIS HONOUR:  Now, what page of the statement of claim do

you wish me to turn to?

MR GRAY:  If Your Honour turns to page 25 Your Honour will

see there the prayer for relief:

What the plaintiff seeks is relief in respect of oppressive conduct pursuant to section 320

of the Companies South Australia Code.

I do not know if Your Honour has recently had to

deal with that section but it is a section that

deals with oppressive conduct.

HIS HONOUR:	Connnon to all the codes, I take it?
MR GRAY:	Yes, it is, the same section, Your Honour. It

deals with oppressive or unfair prejudicial conduct

to a member. The plaintiff is a member and as

Your Honour will see that .....

can pass Your Honour a copy - the powers the courts

have to give relief under 320 is essentially

injunctive in nature. The whole object of 320

is to obtain injunctive orders to regulate fairly

the affairs of the company and, in fact, there is no

claim for damages presently being pursued. That

would be a ..... V HARBOTTLE	action to be explored
in due course against directors.	If Your Honour

pleases, we say, in circumstances where we can

demonstrate a base money loss of $60 million,

as our case is made out, and at the same time there

are other damages in addition to that. (Continued on page 16)

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MR GRAY (continuing):  The other way of looking at it is

that the plaintiff's interest - the Earinga interest

in North Flinders will be diluted from an effective

controlling interest to something much less.

Now, if Your Honour pleases, we can demonstrate

to Your Honour that by reason of the failure to

grant injunctive relief there is every probability

that the damage will occur very quickly, probably

in a matter of hours, if trading on the market

takes place. The plaintiff was without the

umbrella of injunctive relief for three-quarters

of an hour last week. In that three-quarters of

an hour 1. 6 million shares in ADL changed hands, acceptance of the offer. Not surprisingly, ·

as in our client's case it is an offer for more

than double the worth of the company and that

represents a 4.4 per cent interest in the company.

That happened in three-quarters of an hour - I am

sorry, I am instructed an hour and a half, I am

sorry, Your Honour, but anyway, in a short space

of time. So plainly, if Your Honour pleases,

if there is trading in the space of a day all

the damage can be done.

If Your Honour pleases - I have not taken

Your Honour to the background facts yet - we are

now talking about a step taken by North Flinders

as, on our case, a defensive takeover manoeuvre;

a part Coffer for another goldminer, an unconditional

cash offer, on our case, over-valuing the shares

of the target by more than 100 per cent.,

designed as that tactic, the poison-pill tactic,

to make North Flinders an unattractive proposition to Paringa. And coupled with that part C statement

and that obligation to buy those shares, there is

the need to raise the money and that money is going

to come from a non-renounceable rights issue. So

once the part Coffer takes effect, and is accepted

by shareholders, it is inevitable that the company

has got to find this huge injection of capital.

If it is successful, it will more than double the capital of North Flinders, requiring my client to put in $80 million to maintain its same voting

power. Effectively, if Your Honour pleases, my

client will have to put in $80 million to keep
the same interest in a company that is worth

only 20 million more - 40 million more and the

loss to my client is half that amount, being 20.

So the net value is a base figure of $60 million

worse off. But that is without considerinv

other as1_}ects of the damages case~

But that damage is catastrophic, as Your Honour can see and it does not lend itself to compensation

by way of damages because, a, who will find it: the

directors are not, on the face, going to:have that

C3T23/1/JM	16	12/10/88
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type of means available. On bop of that there is

the other aspect, loss of control and loss of

control is a very difficult matter to value in

money terms. On top of that, it represents a

complete denial of section 320 relief, which is

-the whole object of what this plaintiff wants.

It wants to have the affairs of this company regulated fairly.

So, for those three reasons - and I am sorry

that I have put them in a rather clumsy way,

Your Honour - we say that this is not a case

where one would say damages are going to be

on the face of it a satisfactory remedy.

Your Honour, whilst i .I have gone to the balance

of convenience, can I turn the penny over and

look at the'. other side? The order we seek from

Your Honour, is, of course, for the interim order

until special leave can be heard on Friday. If

we fail on Friday, then we will lose our injunctive

cover through the order of this Court and no

doubt on Monday trading will occur. We are talking

about a delay in trading - the offer will still be

there; it will be open - of two working days. Where

is the prejudice to the defendants? There is none.

The only suggestion made earlier, if Your Honour

pleases, about prejudice is that there might be

some shareholders of ADL who have been left uncertain

what to do about sale and in some way may have acted to their detriment. No case has been put forward of

such a person. If there were one, that person would

have a claim for damage against North Flinders and

North Flinders would have a right of indemnity

against the undertaking proferred by my client. So the balance of convenience, if Your Honour pleases,

is in this circumstance all one way.

(Continued on page 18)

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MR GRAY (continuing):  The only other suggestion put

below, on the balance of convenience, was that

the continuation of this order puts, it is
alleged, the defendants in some way in breach of

the take-overs Code. We challenge that. In

any event, that be so, it has been so for

-certainly the last week or so. But, in any

event, it is action by the defendants in

compliance with an order of the court. And,

we say, if Your Honour pleases, that that, of

course, is a complete defence to any suggestion
of breach of statutory duty when the party who is

said to be in breach is acting directly in

compliance with an order of the court. I have

gone to balance of convenience before I intended

to, Your Honour, but we say that the loss to our

client is catastrophic. Effectively our two

major areas of relief are lost to us for all

time as soon as trading takes place in the space

of an hour or a day. We seek to hold the matter

until	special leave can be heard in the
High Court.	From the defendant's point of view,

the trade,if we are wrong, can go ahead on

Monday with no intervening prejudice from their

point of view. We say it is an overwhelming case

in regard to balance of convenience.

Now, Your Honour, could I against that

background, just return back to the special leave

points. I think I had been taking Your Honour

through those when I digressed to meet Your Honour's

question about damages being an adequate remedy.

I was at page 13, Your Honour, and I had dealt

with 3.1.1, I was about to move to page 14.	Now,
3.1.2, Your Honour, the order is refusing an

interloductory injunction made by Justice Legoe

on 30 September had the effect of:

releasing the defendant's to pursue -

their actions which unless restrained

would cause irceparable and irremedial damage to the plaintiff. The

plaintiff has a right of appeal to

the Full Court of the Supreme Court
of South Australia from those orders

but by his order of 3 October

Justice Legoe refused to protect
that right of appeal.

And that is the second of the matters complained of:

and unless that refusal is corrected the plaintiff's right of appeal will

be rendered nugatory, as will be also

the plaintiff's claim, the trial of

which has commenced. The Full Court

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of the Supreme Court of South Australia

by directions to the Chief Justice will

not convene an urgent sitting to hear

either an appeal from Justice Legoe's

orders or an application for interim
injunctive relief pending the hearing

of an appeal in due course -

f.com Justice Legoe's orders. Just pausing there.

The one time we did get before another judge

of the Court, Justice von Dussa, if the Court

pleases, Justice von Dussa gave us a short holding

order based on the ERINFORD principle on a

Saturday night, with liberty to apply in the

interim. The other party came back before

Justice Legoe and had that order discharged, we

say on a misapplication of the principles.

Justice Legoe, if the Court pleases, we will

demonstrate, has a fundamental misconception as to

the principles to be applied in regard to interlocutory matters. It is the flaw of 30 September or to the first order, it led to a flaw in

the order of 30 October and it permeates his

mind now because he is repeating the same

fundamental error of approach in discussions as

recently as yesterday morning in Court and that

is why, we say, Your Honour, there is a common

thread running through this.

That particular point, if I might take

Your Honour ahead for a moment, Your Honour will

find on page 16 at 3.2.2.	Can I just identify
to Your Honour the nature of this point.	I

appreciate that it is not appropriate to develop
these matters fully, but on 30 September His Honour

heard argument initially for interlocutory

inter part relief. We commence the argument

and at first His Honour spoke of the need on
our part to establish a strong prima facie case.

We drew His Honour's attention to this Court's decisions, including THE AUSTRALIAN COURSE BARLEY

BOARD case and THE CAS'ILEMAINE. TOOHEYS case and

Justice Legoe said that, "Yes, he wanted to

retract his earlier comment and he accepted the

arguable case was the.test on the first limb".

Then, Mr Myers, for, at that time the company

North Flinders and its directors, supported our

treatment of the law, but later, another counsel

Mr Morecambe, who appeared for, I think, Your Honour, the broker,

May Mellor, drew his Honour's attention to

the case of QUEENSLAND V THE COMMONWEALTH and

suggested that His Honour should, as the transcript

shows, be satisfied that there was a clear and

strong case before he moved to balance of convenience.

Now Justice Legoe in his reasons, that I can pass -

or his remarks, the nature of reasoning - pass to

Your Honour, applies the QUEENSLAND V THE

- COMMONWEALTH test.

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MR GRAY (continuing):  I have had the relevant pages extracted

from the volume of the reasons, Your Honour, and if

I could pass a copy to Your Honour and a copy to my

friends - they have been before the - in the earlier

High Court papers. Can I pass up a copy of His Honour's

--reasons or remarks in the nature of reasons.

MR HEEREY:	If Your Honour pleases, we would object to the line that our friend's submissions have taken in recent
moments and the direction in which they are heading. The substance of what our friend is putting to the
Court now is, in our submission, a thinly-disguised
attempted to review the decision of Justice Toohey.
All this was gone into aefore His Honour: the question of balance of convenience, the applicability of the statutory scheme for take overs, the part-C
offer and so forth, and what has happened here, in
our submission, Your Honour, is that having come with
this super-extraordinary application for special leave, having a second attempt, allegedly on the basis of some new fact not known until the weekend, it is now being turned into a general review of the whole matter that took a day and a half's argument before
Justice Toohey, as to which His Honour delivered a
reserved judgment yesterday. For those reasons, we
would object to the application proceeding in this way.

HIS HONOUR:  Yes, thank you, Mr Heerey. What do you say to that,

Mr Gray.

MR GRAY:	If Your Honour pleases, our point is that the error
that was made on 30 September has continued to be an
error being used and adopted by His Honour and
His Honour has in mind that before he can even
entertain an application for any injunctive relief,
he has got to have this concept of a clear and strong
case made out, and we are dealing now and were yesterday
morning and were this morning and will, if we apply
again, with a judge who has a fundamental misconception
about the test to be applied. And true it is that that
it was a flaw in the decision of the 30th and the 3rd, but
equally so it is part and parcel of where His Honour was
going wrong yesterday and today. So it remains as an
issue and that is why we draw Your Honour's attention
to it.

We are talking here about a course of curial

conduct that is extraordinary. We are talking about

what some might call a judicial lock-out in South

Australia. We simply cannot be heard and part of that

is arising because Justice Legoe is making a fundamental

error of principle. He has picked up a case that says

before you can restrain the Commonwealth from exercising

its legislative and administrative powers to meet its

international treaty obligations, he must establish a

clear and strong case. Now that principle, Your Honour,

would appear to be axiomatic but it is a very different

C3T25/1/VH	20	12/10/88
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case than a commercial argument in a commercial cause

betwen private individuals.

HIS HONOUR:  What does it matter to your case? Now, what led

Mr Justice Legoe to say what he did yesterday?

Is not your fundamental approach to the question -

--for the application for special leave simply that

you were shut out from making an application?

MR GRAY:	Yes.
HIS HONOUR:	And that you have been unable to secure timely

review of that decision in the Supreme Court of

South Australia?

MR GRAY:	Yes.
HIS HONOUR:	So I am inclined to uphold the objection, not

necessarily on the ground on which it was advanced

but simply because it is irrelevant to your case.

MR GRAY:  Yes. It provides, perhaps, an explanation for what

is happening but it is irrelevant to the fact of the

matter. We accept that, Your Honour.

HIS HONOUR:	I will let you have this back, shall I?
MR GRAY:	Yes, thank you, Your Honour. Perhaps, if Your Honour
pleases, I could take you to page 15 of the affidavit
where we address that particular matter. We do it
in this way - - -
HIS HONOUR:	Can I say this, Mr Gray? More for not in the

sense of expressing any ruling or predetermined view

of the matter at all, but simply that one of the

salient features of this application, it seems to me,

must be the imminence of the hearing of a special

leave application or applications.

(Continued on page 22)

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HIS HONOUR (continuing): Having regard to the fact that I

am being asked to hold the line, as it were, for

a maximum period of 48 hours or so, a little more,

am I justified in being reluctant to go into the

question of the merits attending the applications

for special leave in the same detail, or in the

--same depth, as if the interim relief being sort

was covering a rather longer period.

MR GRAY:  Yes. We certainly do say that, Your Honour, and

we do not want to waste time. Our concern, if

Your Honour pleases, is that to really appreciate

the strength of our case one must understand the
factual matrix and where it leads to but we do

not want to take time up unnecessarily this

afternoon taking Your Honour through laboriously

unnecessary detail.

HIS HONOUR:  And the more you attempt to do that the more

likely you are to run into the objection that

has been expressed and to which I am very sensitive

but I think it would be a mistake for me to go too far into the matters already covered by my Brother Toohey.

MR GRAY:	Your Honour, one of the reasons why we have approached
it in this way,that in the few moments that my
learned friends had to them at 5 to 12 one was
very quick to point out that this was exactly
the same matter that was before Justice Toohey
and one of the matters that we wish to answer
is that is just not so. We are dealing with an
entirely new matter and it is a matter that, plainly,
was very relevant to Justice Toohey's decision because when one reads his reasons, one can see
that he reasons, why would special leave be granted
here when we have a trial judge at trial who has
these interlocutory powers available to him? And we answer, quite so,but he is refusing to
exercise those or even hear us.

HIS HONOUR:	And that is one of the changed circumstances?
MR GRAY:	That is one of the changes.
HIS HONOUR:	I am certainly not going to stop you at the

threshold, Mr Gray.

MR GRAY:	Perhaps if I could test Your Honour's patience
by just taking Your Honour through page 15 and
then I will move back to the rest of my submissions. This is really what we say is the nub of the matter:
that where a single judge being the only judge
who,by direction of the Chief Justice,is available
to hear interlocutory applications in the action
refuses and fails to protect the plaintiff's rights

C3T26/2/AC	22	12/10/88
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of appeal from his orders, denies the plaintiff
a hearing before him of renewed applications for
interlocutory relief based on new evidence and

thereby effectively destroys the plaintiff's

substantive right claimed in the aGtion and where

the Full Court of the Supreme Court of South Australia

--by direction of the Chief Justic is not prepared to convene an urgent sitting to hear the appeals

from the single judge or to make orders protecting

the plaintiff's rights pending appeal and where
that unwillingness on the part of the Full Court
is not itself capable of being appealed from, the
interests of the administration of justice in
this case require the High Court to aclopt the

unusual course of entertaining an appeal from

a single justice of the supreme court.

Your Honour is, of course, familiar with the decision of this Court in a case of SANOFI' when it pointed out that this Court would, of

courset much prefer to have a Full Court decision
before the matter came here and special reasons

would need to be shown before special leave could

be obtained from a single justice. We say here,

we simply cannot get to the Full Court. It is

a factual impossibility in the relevant sense

and that must be a special reason with the SANOFI

decision:

(b) where the available practice and procedures

of the court are so denied to a plaintiff

that it is completely prevented from vindicating

its rights and those rights are thus destroyed

issues of fundamental principle and substantive

rights arise which require the intervention

of the High Court in the interests of the

administration of justice both generally

and in the particular case.

I think I have taken up the point that Your Honour

has, perhaps, raised as being the nub of our application

for special leave. We say the order we want is_

for only two days and we have, as Your Honour

is aware, .had ½he advantage of an expedited hearing

in regard to the special leave matters.

(Continued~on page 24)

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:t1R GRAY (continuing):  Now, if Your Honour pleases, that is

our central special leave point. In a sense, if

Your Honour pleases, there is not clear guidance

as to the way in which Your Honour should exercise

a discretion in dealing with a matter from a single

judge of this nature. Your Honour has guidance

in-regard to, for example, the stay case in the

BURGUNDY ROYALE case, but interim injunctions are

different to stays. Your Honour has guidance from

that line of authority in regard to the ERINFORD

PROPERTIES case which, we say, that if you have got

an interlocutory appeal as of right, unless the

appeal is shown to be frivolous or there are

extraordinary circumstances, it is the Appeal Court's

duty to protect the status quo so that the appeal

is not rendered nugatory.

Here we have an in between case. We do not have

an appeal as of right, we have a special leave

application and our short point is · whether the

ERINFORD test is the test, whether tne BURGUNDY ROYALE

test is the test or whether the test is somewhere

between the two. Whatever the test is we amply

meet it in this case. Now, if Your Honour pleases,

I had now intended, having identified the nature of

the special leave point as being a matter of substance

and plainly arguable on Friday, to take Your Honour

back to · what I describe as the events and,

in particular, take Your Honour through what we would

describe as a course of curial conduct of a most

unusual nature. That involves taking Your Honour

through the affidavit.

HIS HONOUR:  Have you not developed that sufficiently? I

mean, you have outlined events yesterday and again

this morning?

:t1R GRAY:  Yes. Well, Your Honour sees the points :50 I 'Will not

labour it. If Your Honour pleases, we had

anticipated that there were two specific matters

that we should address. I think I may have covered

them poth already. One is that what is special in

this case about coming from a single judge; the

answer is we just cannot get to a Full Court. The

second is being interlocutory isit mere practice

and procedure; our answer is "No", we can demonstrate

in fact here, it does destroy substantive rights.

Now, if Your Honour pleases, the final point that

I was going to make was the balance of convenience.

Since I have addressed that out of sequence, I will

not cover that ground again. If Your Honour pleases,

our short point is there is a clear special leave point

now before the Court, quite different from that before

Justice Toohey.	It could be heard in two days time
by special arrangements that have been made.	The
balance of convenience is all one way in the

circumstances because of the catastrophic nature

C3T27/l/MB	24	12/10/88
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of the prejudice to my clients and the most unusual

circumstances in South Australia. We urge Your Honour

to grant us interim relief until the conclusion

of the special leave applications.	May it please
the Court.

HIS HONOUR:	Thank you, Mr Gray.	Mr Richardson.
MR RICHARDSON:	May it please Your Honour.	I outlined,

Your Honour, 5 to 12, the two principle matters I
wanted to put and I will turn to those in a moment.

But may I put first, Your Honour, that the matter

that is appealed from is not a judgment or order

of Mr Justice Legoe and gives right, therefore, to

no right to be before this Court even on a special

leave application. All that Mr Justice Legoe did
yesterday, Your Honour, was not refuse an application

for interim relief but give a direction as to when

and how he would hear the application for interim

relief.

My learned friend, Mr Heerey, I think, will take

Your Honour specifically to the transcript of what

has occurred in front of Mr Justice Legoe and he has a

~eater familiarity with the matter than I do. But

my understanding is that he will demonstrate that,

in fact, there was considerable argument yesterday before Mr Justice Legoe. as to whether there should
be interlocutory relief, injunctive relief; that

went for something in excess of an hour, and he

said merely that he would not proceed to hear it at

that point.

There has indeed been, we understand - and we have

just had handed to us transcript of what occurred this

morning - further considerable argument and material

put before Mr Justice Legoe today in support of a

further - or that application for interlocutory

injunctive relief.	Mr Justice Legoe, if I may put it
in a nutshell and, indeed, quote.- if I understand

words that he has used - has said, that all that is

being done is to recanvass material that has already
been put before him, that whereas it is said by the

applicant, the plaintiff there, that there is further

material, additional material, that is merely

additional evidentiary material of a kind which the

judge was asked to assume in any event in considering

the initial application; the substance of the

application remains the same and he is simply - had

not yesterday and still has not finally disposed of

the application.

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MR RICHARDSON (continuing):  The application therefore, in

my submission, fails to come within the concept of an order as defined and dealt with by this Court in

SWISS ALUMINIUM AUSTRALIA LTD V FEDERAL

COMMISSIONER OF TAXATION, (1987) 163 CLR 421,

where at page 425 the Full Court, of which I

think Your Honour was a member, said:

It is well settled that an order must finally determine the rights of the parties before it will qualify as an

order within the meaning of s.73 of the

CONSTITUTION and s.35 of the JUDICIARY ACT. Now, this appeal is not from such an order, in

our submission.

HIS HONOUR:  I suppose it can be a difficult phrase in some

circumstances as to whether a decision finally

determines the rights of the parties. If by

delaying a decision the rights of a party are

pr~judiced, does that come within the definition?

MR RICHARDSON:  In my submission, Your Honour, not, because

it is in the same concept as the line of cases,

Your Honou~ which deals with what constitute

interlocutory orders and what constitute final orders.

It does not apply in this Court now, but it applies

in the Federal Court to - one is required to apply

for leave to appeal to the Federal Court in

relation to interlocutory orders - - -

HIS HONOUR:	Yes, quite.
MR RICHARDSON:	- - - but not in relation to final orders,

putting that broadly, and it has been held in a line of cases which I do not have before me at the moment

that an interlocutory order which may nevertheless

have the factual effect of finally disposing of the matter is still a matter that requires leave because

matter which is simply not an order within the	the same principles do apply here and this is a it is still an interlocutory order. In my submission,
meaning of the CONSTITUTION and the Act and therefore does not give rise to Your Honour having any
jurisdiction to entertain any appeal from what was
done by Mr Justice Legoe yesterday, notwithstanding
that it may factually dispose of some matters.

HIS HONOUR:  Yes. I see the force of that, Mr Richardson.

It may become a question as to how far I feel

obliged to resolve disputed questions this afternoon,

as distinct from leaving the Full Court to dispose

of them on Friday. I must confess that now that ilie

situation has changed in the last day or two and

happily one has the prospect of a resolution in one

way or the other of these anplications for soecial leave

bya Full Court, I am exercised in my mind with the

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fact that probably one of the major considerations confronting me and which assumes greater significance having regard to the imminence of a possible

resolution of the applications is the question of

harm to the respondents from delaying the lawful

pursuit of their rights for another 48 hours. Will

you be addressing that? I do not want to take you

out of the line of your submission, but I thought I

should tell you now that is exercising my mind and

it may affect the extent to which I feel obliged to

go into this sort of question you have just ventilated.

MR RICHARDSON:  Your Honour, with respect, of course that

would not arise if Your Honour merely has no

jurisdiction, which is my first and principle

submission, but in answer to Your Honour's question

I was not proposing myself to go into what might be

briefly described as the balance of convenience.

Clearly any interference with the market in a matter

as substantial as this involving many potential

purchasers who have a reasonable anticipation of

being able to trade in the ordinary course is a

significant detriment to my client, but I do not

propose to deal with it any more fully than that.

Your Honour, as to the matter which is clearly

concerning Your Honour, and that is the imminence of

a potential hearing by the Full Court, the

applicants went into this - - -

HIS HONOUR:	I, of course, meant the F~ll Court of this Court.
MR RICHARDSON:	The Full Court of this Court, yes - the

applicants run into this obstacle. My learned friend Mr Gray stands there and professes that we are not here

canvassing in any way the judgment of Mr Justice Toohey	and yet this very matter was put before
Mr Justice Toohey yesterday and he said, at page 156
of the transcript of the argument yesterday:

I am not persuaded that the possibility

of a hearing of the application for

special leave to appeal this Friday

is a sufficient reason for staying or

suspending the order that I propose to
make in relation to the application

just dealt with.

(Continued on page 28)

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MR RICHARDSON (continuing):  Your Honour, my friend invites

Your Honour to go behind that reasoning. And,

in my submission, even if Your Honour were at
first impression inclined to a different view,

this matter has been put and argued before

Mr Justice Toohey and dealt with by him. It

--is part of what I am putting and propose to pu~

Your Honou½ that this application today is really,

in substance, a mere canvass·ing of matters that

have already been dealt with.

No other ground comes forth today.

Mr Justice Toohey yesterday said, "I am not

persuaded that it is relevant that there might

persuaded by'', His Honour said, 'is that	be a Full Court hearing on Frida6. What I am
Mr Justice Legoe should be notified of what is
going on in the High Court and so that he should be aware at the time that any further application
is made." And, indeed, my instructions are,
and I expect the transcript will show, that he
was made fully aware today of Mr Justice Toohey's
orde½ the effect of which is that as of 2.00 pm
today the interlocutory relief would come to
an end. I think, in fact, he was mistakeriy
told 2.30.- I think he was told 2.30 but the
substance of the material is the same.
And notwithstanding that he has made further directions as to the conduct of the litigation
which is proceeding in front of him. Your Honour
does not need to be reminded, I think you have
already referred to it yourself, with respect,
that there have been on my count now something
like six applications made to judges for interlocutory relief which have been refused.
That is not counting many others in which very
temporary relief was given. And counsel for
the applicant keeps on speaking of "course of curial conduct" of a most unusual nature. All
that is unusual, Your Honour, is that the plaintiff
will not lie down. He makes the same application
and will not accept the result. And merely obtaining
a "No" answer on half a dozen different occasions
does not make the answer any more dubious, in
my submission.

Your Honour, if Your Honour is against me

on the submission that the direction or order
of Mr Justice Legoe from which the appeal is

brought is not an order or judgment of the kind

that is necessary to give jurisdiction to this

Court in this matter, then at least, Your Honour,

it is an interlocutory judgment, itself on an

interlocutory matter, requiring special leave

to this Court from a single judge. So on four

counts Your Honour would need to be persuaded

C3T29/l/ND	28	MR RICHARDSON 12/10/88
Paringa

that very special reasons should be given for

this Court to interfere,and Mr Justice Toohey,

on three counts, when there clearly was an order,

declined to do so for the reasons that he has

expressed in his judgment. We are now even one

step further removed from that and for those

--very reasons, in my submission, this application

should be refused.

HIS HONOUR:	Of course, those extraordinary features of the application will take centre place, of course,
on a hearing of an application for special leave
itself rather than the application for interim
relief.
MR RICHARDSON:	That is so, Your Honour, of course.
HIS HONOUR:	But, of course, I appreciate they are net

irrelevant. It is just a question to be considered

as to how far I am required to go in seeking

to evaluate the strength of the special leave

application.

MR RICHARDSON:  Your Honour, Mr Justice Toohey remarks

in his judgment, if I can just find it quickly -
and I do not want to overstate it. My recollection

is that the special leave application was - perhaps

he did not say "doomed to failure". I will just

see if I can find the passage, Your Honour.

HIS HONOUR: 

Yes, he was very encouraging to you.

MR RICHARDSON: 

Your Honour would take that into account

and, in my submission, not vary from that view
and if that is the correct attitude, as I submit,

clearly it is, then discretion should be exercised

in our favour when the matter has already been

fully canvassed before a Justice of this Court,

not to mention a judge of the Supreme Court of

South Australia on numerous occasions. Either

the issue has been - - - (Continued on page 30)

C3T29/2/ND	29	12/10/88
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HIS HONOUR:  How do you rate the point of law that says,

as I understand it, that in failing to have

regard-or that Mr Justice Legoe failed to have

regard when considering an application for

interim relief to the ERINFORD principle and

he should have?

MR RICHARDSON:  Your Honour, clearly one answer to this

and perhaps it - - -

HIS HONOUR:  And he should have is simply the argument. I

am not saying he should have.

MR RICHARDSON: Yes, I understand that, Your Honour. Well,

that merely gets back - I say two things,

Your Honour. That merely gets back, in relation

to this application before Your Honour, to material
that was already argued before Mr Justice Toohey

and it should be given no more weight by

Your Honour than it was given by Mr Justice Toohey.

HIS HONOUR:  Yes, but if I am against you on the jurisdictional

point and I have to proceed on the basis of an
application for interim relief pending the

determination of a new application for special

leave, the reasons of Justice Toohey, whil-e

clearly persuasive, are, in no sense, binding.

MR RICHARDSON: Certainly not binding, Your Honour, but,

in my submission, it would need the most

extraordinary circumstances not present in this

case, for an application to be made to one judge

of this Court and to be refused after a day and

a half's argument by senior counsel to enable a

further application to be made the following day

before another judge on the same material and have

that judge come to a different conclusion.

HIS HONOUR:	Yes.	I am sorry I am here.
MR RICHARDSON:	And that is, really, the crux of what I am

saying.

HIS HONOUR:  Yes.

MR RICHARDSON: It is the same application, Your Honour,

given slightly different dress. The passage

to which I made reference, Your Honour, I have

had pointed to me is at page 12 of the reasons

for judgment about point 7 where His Honour said:

Not only is this application for special

leave to appeal likely to fail; it is not

even likely -

well, then, he goes on to say:

It is not even likely to be heard.

C3T30/l/SH	30	12/10/88
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But he makes the point that, in his opinion,

it is likely to fail. He then goes on to

discuss the timing of the hearing and I have

already dealt, Your Honour, with it having

been drawn to his attention yesterday that,

-- in fact, the hearing has the potential of

being brought substantially forward and that

did not cause him to change his mind.

Your Honour, one of the complaints that is

made by the applicant is that there has been a

denial of natural justice. That seems to be a

new ground that rears its head in this application

which was not raised in the application before

Mr Justice Toohey, the denial of natural justice not

being heard. Well, Your Honour will see, I

understand, once the transcript is drawn to your

attention, that Mr Justice Legoe has been more

than patient in listening to the submissions that

have been put on behalf of the plaintiff there,

the applicant here, both yesterday and again

today, in support of an application for interim

relief and it is clearly not a case where he has

simply shut out the application being made. He

has indicated and he has used the words, as I

understand it, "It is a recanvassing of material

already put" on the same issues that have already

been raised before him and he has done that after

some hours - an hour yesterday and considerably

more time this morning - of argument being placed

before him.

In my submission, Your Honour, the discretion

should be exercised in our favour merely because

it is not, except in the most extraordinary

circumstances and, in my submission, with some

real new material, proper for an applicant who

has failed before one Judge of this Court to seek

similar relief in front of another Judge, the

following day. May it please the Court.

HIS HONOUR:  Thank you, Mr Richardson. Yes, Mr Heerey.

(Continued on page 32)

C3T30/2/SH	31	12/10/88
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MR HEEREY:  In our respectful submission, Your Honour ought

follow, as Justice Toohey did, the criteria

suggested by Justice Brennan in the BURGUNDY

ROYALE case which His Honour suggested as

appropriate to an application for an injunction

pending an application for special leave. And

-one of those criteria was that given that it

was, in His Honour's term, "an extraordinary

jurisdiction", the applicant had to show a

substantial prospect of obtaining special

leave. And, Your Honour, in our submission, that

remains the case, irrespective of how near or

how far off the hearing of the special leave

application is and while there is always a

beguiling attraction in that a plea, "Well,

only a few days more", the fact remains that

in this case, on 30 September after interlocutory

hearings extending for the best part of a week,
the applicants failed before the appropriate

forum of a single judge who refused their

application and yet by various applications and

stays and temporary injunctions, almost half

a month later they have the very relief they

were refused. So we would very respectfully urge

Your Honour to look, as Justice Toohey did, at

what case the applicants have made out to

support the claim of a special prospect of
obtaining special leave and it really boils down

to this claim that they were shut out by

Justice Legoe. And since strong criticism was

made of His Honour,and getting closer to what we

would suggest was extravagent criticism, it

was said that His Honour displayed "a closed

judicial mind", we would seek to take Your Honour

to the transcript of proceedings yesterday. I am sorry, I have just got loose photocopies here, if

I could hand those to Your Honour. They commence

at page 2. After some initial discussion concerning

another party who sought to intervene there was

mention made - it appears at page 3, Your Honour·

My learned friend Mr Gray at line 32, referred to his application in,! the nature of an interlocutory

application for injunctive relief during the course

of the trial.

Then there is some further discussion about

this and, as has already been said, the matter was

stood down for something over an hour so the

other parties could read the material. And if

I could take Your Honour to page 12 of the

transcript, where Mr Myers, counsel for the

director defendants is dealing with it. It is

important to look at the argument because

His Honour,very understandably, if we may say so

with respect for a trial a judge making a ruling

in running dealt with the matters in the context

of the argument that had been heard before him

and therefore it is unreasonable to simply take out

C3T31/l/SR	32	12/10/88
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of context one or two sentences of what

His Honour said and say that that amounted to

a refusal to hear or was in some other respects

to be criticized. Now on page 12, at line 18,

Mr Myers is there saying:

In our respectful submission, an
application such as this should not

be entertained until there has been an opening

at least, until there has been som evidence. The

trial in truth has not even cOIIIIEnced,

And going to page 14, Mr Myers at line 15, after

His Honour made some reference to "documents",

Mr Myer said:

We say the trial should not be

further delayed. This is just

delaying the judgment day as far

as our friends are concerned. They

should be made to open their case

and if they can open their case

and lead some evidence then they

may be able to make some further

application for interlocutory

relief.

(Continued on page 34)

C3T31/l/SR	33	12/10/88
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HIS HONOUR: Sorry, what line was that, on 15?

MR HEEREY:	Page 15, line 18, Your Honour.
HIS HONOUR:	Page 15, line 18 says: Impertinence to the High Court.

MR HEEREY:  I am sorry, page 14, line 18. The defendants

are saying, "Well; our attitude to this new application

is that: Here we are; the trial is ready to start. They should at least open their case

and lead some evidence to see if they can make

out this application." Then, over the page,

page 15, at page 19, His Honour says to my

learned friend:

Mr Gray, why should I hear this application?

Now, so far from shutting him out and curial

lock out and all these colourful phrases we have heard

here is His Honour giving the plaintiff the

opportunity to justify, which on the face of it

is a fairly unusual application, to put it

mildly, that is applications for interlocutory injunctions have been dismissed and the listed

trial is due to start. Mr Gray then goes on

and tells His Honour about the High Court proceedings

and then he refers to an affidavit of Mr den Dryver,

which I will have something to say in a moment.
Then at page 16, line 36, His Honour said:

No. In the light of what has been said in the applications already, the Court would

be very reluctant to even contemplate

adjourning the case because it has been

agreed in the passages that have been

mentioned, that an early trial is in the

interests of all parties, particularly the

plaintiff.

Then, Mr Gray protested that they were ready to

proceed and they said that:

Your Honour has been misled by learned

friends in material put forward and - - -

HIS HONOUR:  That is dealing with the question of discovery,

is it?

MR HEEREY:  No, I think there he is referring to these

minutes and the claim is by the plaintiffs

that only part of the minutes were put forwar~

by the defendants and therefore there was

a misleading. But then, as Your Honour will see,

His Honour refers to the Burke affidavit, which

was the affidavit produced yesterday to base this

application and there is reference at the bottom

C3T32/l/JM	34	12/10/88
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of page 17 to paragraphs 11 and 12.	At line 23
His Honour says:

Let me refresh my memory on paragraphs 11

and 12.

-so far from refusing to hear the plaintiff he

looks again at the affidavit material. Then the

next two pages, 18 and 19, consist mainly of

an explanation by Mr Gray as to the facts alleged

to be new material. At the,bottom of page 19,

just after line 35 - - -

HIS HONOUR:  These recent pages you have referred to do

not seem to be dealing with the application for

interim relief, are they?

MR HEEREY:	Yes, they are, Your Honour.
HIS HONOUR:	The deficient discovery, what has that got

to do with the - - -

MR HEEREY:	The case that is put is that the discovery had been deficient because they had only obtained
these documents over the weekend which gave rise
to the allegedly new evidence which justified
renewing their application for an interlocutory
injunction.  Then at the bottom of page 19, at
line 35, His Honour said:

(Continued on page 36)

C3T32/2/JM 35 12/10/88

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MR HEEREY (continuing):

All of that may be very material evidence

no doubt for the trial .but it does not really
add to the basic grounds upon which you

sought an interlocutory injunction on

29 and 30 September. These allegations

were made by the plaintiff when you were
before me on 29 and 30 September by way of

imputations. You said, "I should imply," or "I should infer," I think that was the

word that was used.

And then there is some - I will read on the rest of

the passage. Mr Gray said:

My learned friends told Your Honour it was

an improper inference to draw.

His Honour said:

That may be so, but the question that I was asked to determine is a serious question to

be tried which, combined with the balance of

convenience, rendered it essential for me

to protect the plaintiff's interests on

matters that were all before me on this, if

you like, very broad spectrum. This simply

itemizes in more detail - - -

HIS HONOUR: I am sorry, this is page 20?

MR HEEREY:	Page 20, Your Honour.
HIS HONOUR:	What line are you on?

MR HEEREY: Line 12.

HIS HONOUR:  Oh, I see, yes:

"That may be so -

that paragraph.

MR HEEREY:  Yes:

This simply itemizes in more detail what was put

to me on 29 and 30th and I ruled on it on 30th.

Mr Gray:

It does not itemize it in a way. What it is,

it is hard evidence, not inference.

Yes.

Then Mr Gray is going to criticize the affidavit:

Why was it sworn?

C3T33/l/VH	36	12/10/88
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We had the minutes of 22 August when we

did not - - -

Specifically, what was held back? Was

the very clue that would have led us to the

line of inquiry on the advice given by John Bate?

And His Honour:

This is not a matter I can determine on an

interlocutory application. Why that was not

disclosed to me upon that previous occasion.

It would be very relevant, no doubt,uponthe trial.

That is a matter to be determined on the issues

as they arise on the pleadings.

And then there is some more argument and then, over the

page to page 21 -it is not an unfair surrrrnary of the

argument that Mr Gray is putting. He is saying, "Well,

look, when we were before you we were arguing some

things as a matter of inference and we say we have now

got evidence and not merely inference." And at page 21

at line 6, does Your Honour have that?

HIS HONOUR:  Yes.

MR HEEREY: His Honour said:

That may or may not be so. I am sure that it is

so. They were aware of it. Be that as it may, I still

do not see how this is bringing up something in the

way of a new issue relevant to the two questions

which I was considering on 29 and 30 September.

It seems to me that it is merely particulars of

what I was then considering and that I should not

entertain this application at this stage - and we have underlined those words:

but, as has been put to me by other counsel, we

should proceed with the trial forthwith.

Mr Gray said of course they would put that, because they

see the prospects of the interim injunction in the

~igh Court will be protected:

Their claim for our relief will be rendered

nugatory. That is why we say they have taken

up the time they have, they are about avoiding

at any cost being heard fully on the question

of the need for injunction.	If they can put off
that, they hold the day.

And His Honour:

That may well be so and that may be some motivation,

of course. But the point is this, that I have got

to determine whether it is appropriate to yet again

recanvass, as I see it, points which have already

C3T33/2/VH 37 12/10/88

Paringa (Continued on page 37A)

been canvassed before me in general terms,

not specifically in these terms, not

specifically with this evidence, the issues

relating to the interlocutory injunction,

bearing in mind that it was agreed we would

commence the trial today, this morning.

·'y;ell-, then Mr Gray goes on:

We do not complain about that.	We are here
to start the trial.	The complaint is that the

early trial does not meet the prejudices we

suffer, hence we are forced to pursue yet

again interlocutory relief because, despite

the early trial, the nature of the prejudice

is such that it is inrrninent and can be caused

in a very short space of time.

Which comment obviously arises, of course, that that

could be no more than recanvassing what had already

been put.

(Continued on page 38)

C3T33/3/VH	37A	12/10/88
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MR HEEREY (continuing): His Honour said:

It is not all the one way, is it? That was

put to me on the 29th and 30th. There are

prejudices both ways -

--1n other words His Honour is referring by inference

to the debate that had taken place about the balance

of convenience. Then there is a long passage in

which there is reference to the QUEENSLAND V COMMONWEALTH

case and there is more debate and if I could take

Your Honour next - from page 22 to page 26 there

are quite extensive submissions by Mr Gray about the facts of this new evidence, its significance

and so forth and right at the bottom of page 26,

the last line on page 26, His Honour said that:

I do not see that it is a new issue, that

is my problem. These issues were all canvassed

before me on the 29th and 30th. Now this

particular evidence that was not before

me, that is I am sure agreed, must be.

Whether it must be or not you certainly

made out a very strong case that that material

was not before me. I am sure it was not.

But that is not the point as I see it.

The question is: should you now on the day

that this case is listed for hearing to

commence the hearing, be allowed to reopen

the question of the interlocutory injunction.

That is what you are asking me to do on

some material that was not before me on

the 29th and 30th which, admittedly, it

is stressed by you and demonstrated by you

to be of particular significance and importance

to your case but I am unable to see, and
that is my present attitude as presently

advised, that it opens any further issue
in relation to the application for interlocutory

injunction. Those issues were based on

the statement of claim which is in an unamended

form before me. Furthermore if you are

allowed to cross-examine Mr den Dryver at

this stage -

and I might interpolate there, Your Honour, that

one thing that the plaintiff was seeking to do

at the start of the trial before opening was to

have a deponent on an affidavit in the interlocutory

proceedings cross-examined for the purposes relating

to this interlocutory examination.

C3T34/l/AC	38	12/10/88
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MR HEEREY (continuing):

When the case is due to start before your opening

that would seem to me to be quite contrary
to the basic procedure of any litigation

whereby the plaintiff presents his case

and the defendant answers that case when

the evidence is concluded -

'that is, basic elementary steps to the proceedings

on the investment system, I think." Then it continues

over further and, finally, can I take Your Honour to

page 34. There is more submissions by Mr Gray and,

finally, at page 34 lines 13, His Honour says:

I cannot see that any of these points justifies

me in allowing this application for yet another

interlocutory injunction to be canvassed at

this stage in the light of the orders that

have already been made, and in the light of the

fact, in particular, that this trial was due

to start at 10.15 this morning and I do not

think I should really be called upon to give

you any further reasons other than those that

I have mentioned in the course of discussion,

and I think I should rule here and now that

after lunch you should open your case.

MR GRAY:  I have not finished our submissions

in regard to the matter, we wish to continue

them.

HIS HONOUR:  But I have heard sufficient to

enable me to rule.

MR GRAY:  It is not appropriate to hear the

application at this point of time.

HIS HONOUR:	That is right.
MR GRAY:	And Your Honour will not hear the

application, that is, the proposed ruling.

HIS HONOUR:  No. I have entertained your

submissions now for - I do not know how long

you have been on your feet but I suppose it is

the best part of an hour, but whatever it is

I have got the point, I understand what you are

getting at and I am not satisfied that they raise

new issues, even the Panfida order, which would

warrant me in delaying any further the connnencement
of these proceedings and I so rule without
giving any further reasons. That is my ruling.

Then the court adjourned for lunch and then there was a further application made after lunch for another

injunction.

HIS HONOUR:  The application was repeated after lunch?

C3T35/l/MB	39	12/10/88
Paringa

MR HEEREY:  Yes, Your Honour. It was at page 36. Mr Lander

appeared for the plaintiff at this stage and he told

His Honour, at line 17 on page 36:

The Chief Justice of the High Court has

indicated that he will list the application

for special leave on Friday next L:"'l i·1elbourne

at the end of the special leave sittings,

that is,the application for special leave to

appeal from Your Honour's order dismissing our

claims for injunction and dismissing the

interim injunction pending appeal.

HIS HONOUR:	That is the orders on 30 September
and 3 October?
MR LANDER:	Yes.  Mr Justice Toohey - and he is

delivering his reasons this afternoon.

So what Justice Legoe was told was that the special

leave application on Friday was the existing one

which was the foundation of the application to

Justice Toohey. Nothing was said about the one that

is now being lodge before Your Honour. There was

some reference to an arrangement that Your Honour would

be able to hear the application and an application

was - said at line 30:

No, there was an interim order made by

Justice Wilson pending the appeal, disposing

of the special leave application, so it is not an appeal as such, but an order in the

special leave application.and.that is listed

for hearing at 4.30 this afternoon. We have

been advised by the High Court that Justice Wilson

would be available to hear an application for

further interim relief and the application

would be made to His Honour, would be that

an injunction be granted by way of an interim
injunction until Friday next, until the

disposal of the special leave application.

That application will be made this afternoon

and Mr Gray has gone to Canberra for that

purpose. Notwithstanding that I would make

application to Your Honour for an interim

injunction until Friday on the basis of what

I have put to Your Honour, that is, that the

special leave application will be determined

on Friday and that unless an injunction is

granted such harm will be done to the plaintiff

that cannot be undone that Your Honour ought
to join the defendants in the term that they have

sought until the disposal of the special leave

application.

His Honour made some reference to things that were being done by Your Honour.

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MR HEEREY (continuing):  At line 28 His Honour remarked

that, 'surely the ball is in the High Court now?"

HIS HONOUR:	Page 38?
MR HEEREY:	Page 37, line 31:

MR LANDER.:  And in the event that

Your Honour made that order there would be no necessity to make an application of

Justice Wilson.

HIS HONOUR:	You have already said that
once.

Well I do apply for Your Honour to make

that order that the application is rejected.

So the whole tenor of those proceedings yesterday,

Your Honour - - -

HIS HONOUR:  There is no doubt there is an order there

somewhere - I mean, it throws more light on the

problem that Mr Richardson raised.

MR HEEREY:	Yes, I will not say anything as to that, Your Honour.
HIS HONOUR:	I have not, of course, had an opportunity of

reading that before.

MR HEEREY:  Yes, but by the same token, Your Honour, it makes

quite fanciful, in our submission, an attack

on Justice Legoe as somehow shutting out and

refusing to hear the application of the plaintiffs

and, more importantly for present purposes, it

was plainly an exercise of discretion by a trial

judge seized of the very demanding task of running

a complex commercial trial with many parties,

considerations of public importance, which I will

come to in a moment, and the judge who had, on and

off for several weeks, heard arguments about

interlocutory applications and applications for

interlocutory injunctions.

Now, His Honour made that decision in running

and obviously guided by what His Honour thought was

the most expeditious way of getting on with the

trial, and we say, with the greatest respect, that

if the prospect of special leave from that kind of

decision were to be seriously entertained it would

amount to a classic example of the very sort of

thing that Justice Toohey suggested, that is that the

High Court would be asked to adopt a role of

monitoring and perhaps supervising - this is

page 13 of His Honour's judgment:

monitoring and perhaps supervising

various stages in the litigation between

C3T36/l/HS	41	12/10/88
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the parties in the Supreme Court

of South Australia, both at first

instance and on appeal.

No litigant engaged in serious commercial litigation

could afford not to have two separate teams of

counsel, one to run the trial and the other to

jump on the next available plane to rush off to

Canberra to challenge any ruling of running

that they did not like.

So, it was simply a judge's decision in running

upon a particular litigation. It raises no

questions of law at all, in our submission, let

alone questions of law of public importance which

would warrant the grant of special leave.

Your Honour, finally can I say something about the

balance of convenience. There is a public interest

element here which was raised before Justice Legoe,
which was debated fully before Justice Toohey, and

which must loom large in any consideration of this

matter, and it is this:  under the (ACQUISITION

OF SHARES) CODE, once a part Coffer is made - it

is dealt with in section 17 of the (ACQUISITION OF

SHARES) CODE - the effect is that the offerer and

the broker - that is the client for whom we appear -

who makes that offer gives notice in the form of

part C and then 14 days after that must stand in

the market and buy shares at the stated price from

whoever wants to sell and that offer cannot be
withdrawn except in compliance with the strict

requirements of the Code.

(Continued on page 43)

C3T36/2/HS	42	12/10/88
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MR HEEREY (continuing):  They are dealt with in section 33

of the Code, the offer can be withdrawn if certain

prescribed occurrences have taken place. They

are defined in section 6 and they are not relevant,

they deal with matters affecting the target company

such as winding up or appointing a receiver and

--under sections 33 and 34 there is a power conferred

on the National Companies and Securities Commission

to consent to the offer being either withdrawn

in the case of section 33(6) or suspended in the

case of section 34. And that all points up,

Your Honour, the important fact far beyond the

interests of the parties to this litigation is

that there are thousands of people who are affected

by the interruption to the normal function of the market. There are thousands of people who

are entitled to order their affairs and make decisions

on the reasonable expectation that the statutory

scheme will be put into effect. And that is the

relevance of the reference to the QUEENSLAND case

and the CASTLEMAINE TOOHEYS' case where His Honour

the Chief Justice raised it as a relevant consideration

in an injunction application.

So, Your Honour, we say in broad the applicants

are no better advanced in showing a substantial prospect for obtaining special leave today than

they were in the proceedings before Justice Toohey

and in the exercise of Your Honour's discretion

the application should be dismissed. If Your Honour

pleases.

HIS HONOUR:  Thank you, Mr Heerey. Yes, Mr Hayes.

MR HAYES:  Your Honour, Australian Development Limited and

its shareholders have a real interest in these

proceedings and the orders sought. It is a public
company; 55 per cent or thereabouts of its shares

are held by the company, Poseidon, and the other

45 per cent, or thereabouts, are held by various

individuals amongst the public. A part Coffer

to purchase all of those shares is currently standing

in the market and an order as it stands at the
moment prohibits North Flinders from taking any
step in relation tothat acquisition but the order
does not expressly relate to ADL or its shareholders.

That creates a state of some uncertainty as to

whether, in fact, shareholders can at the moment,

even whilst the injunction runs accept the offer.

They are not prohibited from doing so by the order

in direct terms but there may be a number of practical
reasons why they are prevented by the order from

doing so, not the least of which as was given

in evidence before His Honour Mr Justice Toohey,

wasa public warning put out by the plaintiff that

anybody who accepted this offer did so at their

C3T37/l/AC	43	12/10/88
Paringa

own risk - I am paraphrasing of course -and that

the acquisitions were liable to be set aside.

Also the injunction restrains payment so there

is real uncertainty affecting those amongst the

shareholders who may be inclined to accept the

- - offer. And if they accept the offer - and I understand

it is an administrative step entirely in the hands

of the person to whom the offer is made, that

is not something which North Flinders can prevent -

you just give notice to the stock exchange that

you accept, then North Flinders is automatically

in contempt of court. So North Flinders can be

placed in contempt of court by an administrative
act by a shareholder of ADL not subject to the

injunction. So there are two problems with balance

of convenience there:  one. affecting North Flinders

obviously enoug~_ it can be put in contempt of

court without taking any step and, secondly, affecting

my client and its shareholders in that a very

real uncertainty is created as to their ability

to accept the offer.

There are other aspects of a very fundamental

kind that affect balance of convenience, Your Honour.

The share price has dropped since these injunctions

have held. Now, therefore, those who do not propose

to accept the offer are being prejudiced and,
of course, the company itself is prejudiced if

the value of its shares drops. It alters certain

key financial aspects linked to the market value

of its shares. And, indeed, shareholders who wish to organize their affairs based on, say, raising finance on the strength of their shares

are in a state of uncertainty given the fluctuation

effected in the market price for the shares by

shareholders are not the recipients of an undertaking	the continuation of the injunction., and ADL and its
as to damages.

(Continued on page 45)

C3T37/2/AC	44	12/10/88
Paringa

MR HAYES (continuing):  Now, my learned friend said before,

I thought, they are effectively covered by an undertaking as to damages because they could sue North Flinders and North Flinders can look

to the undertaking as to damages but how? If
a shareholder loses theopportunity to accept

- - the North Flinders' offer by reason of the continuation of this injunction, it does not

have, as far as I can see, any clear cause of

action against North Flinders and it has no
right to look to Paringa for damages because
the undertaking as to damages does not extend

to it.

Now, that is why ADL continues to come to

court to represent those particular interests
that are studiously ignored by the structure of

these proceedings. It is why Mr Justice Legoe

made ADL a party, in effect, below and why, I

take it, there was no opposition to ADL being an intervener and being heard when the matter

was before Mr Justice Toohey.

So, Your Honour, every day that this injunction

runs, every minutes, causes real harm to ADL and its

shareholders in no way compensated by any proffered

undertaking as to damages and that, alone, should

be a reason to not grant any injunction. If I

can then stray into the broad - and I do not wish

to recanvass what has already been ably put before

and I wish to generally the submissions. Your Honour

indicated in some questions to my learned friend,

Mr Richardson, an attitude along these lines: if

the special leave application is going to be heard

on Friday and if it is pointless for me here, in

this short time that I have available, to go into

the merits of the appeal and the appeal of the
chances of getting special leave, and if, on the
face of it, the balance of convenience favours

the applicant, what is the harm in another three

days?

Now, I am, perhaps, poorly paraphrasing

some questions that Your Honour asked but that

wo.uld be a submission that could legitimately be

put in favour of the application that is being

put, if I may address that. Your Honour, what

we have, really, here is the granting of an

injunction by stealth in the sense of the relentless

resort to the processes of the courts since

29 September, have led to an almost uninterrupted

period of an injunction, notwithstanding, as I

calculate it, seven previous refusals by courts to

grant or renew those injunctions.	An injunction
is sought. It is set aside. You then appeal and then you say,	''Well, give me an injunction pending the appeal. 11 Were that
mean that an interlocutory injunction would alm:,st never fail. course to be given any fonn· of judicial imprimatur, it would you stopped.

C3T38/l/SH	12/10/88
Paringa
HIS HONOUR:	There was no question of judicial imprimatur

implicit in the question that I propounded for the

sake of argument, Mr Hayes. I was addressing the

question which now confronts the Court, quite apart

from any prior proceeding or issue. So I do not

think you could advance as an argument in favour or

- ~against the grant of an interim injunction now that it

give it judicial impr:imttur to the course of events

that has happened in this case.

MR HAYES: Well, it would mean, Your Honour, that another three

days would be being tacked on to, albeit in its own

circumstances, a period of days granted by the succession

of applications since 29 September.

HIS HONOUR:  But if that two days, and I think it is only two -

it does not make much difference in principle :;; if

that two days was covered by an interim injunction it

would have to be because of the considerations which

are now present before the Court in the application

on which the seeking of interim relief is sought and

so on.

MR HAYES:  Yes, Your Honour, of course. But in the context,

we would submit, of.· and one cannot ignore altogether the

history of the matter_-and the succession of applications

brought and brought as late as this morning. We do not

know what has happened this afternoon, we have been here.

But applications have been made on a daily basis for

further injunctions and, indeed, to take up something

that my learned friend, Mr Heerey, said, Mr Justice Legoe ,·

as we read the transcript, has not ruled finally against
granting any further injunction. He has simply said,

after considerable debate, and not given short shrift

as might have been suggested in some of the submissions,

"I don't see anything in the present circumstances that

have changed that-.,warrant me, at this stage, making a

"further order." So it is not as if the plaintiff/applicant

here is being denied a hearing or even does not have an

opportunity for further application between now and

Friday.

Your Honour, another point is that it is by no _means.

clear to me , that this special leave application will

proceed on Friday. We are told that we will be put at

the end of the list to be heard, if at all possible,

and experience tells one that often there is a bit of

time at the end of the day. But there is no guarantee

that the matter will be heard on Friday and that may
leave the parties in a very difficult position of being

told, well, just another seven days until the next

special leave can be heard in perhaps a week's time after

that, and so on.

C3T39/l/VH	46	12/10/88
Paringa

MR HAYES (continuing):  The matter of whether a further

injunction should be granted is not a matter that

can be quickly disposed of by the Court. The

matter before Mr Justice Toohey, which I was present

for, took a day and a half and depending on who

-hears the matter, and what matters are raised,

it is quite likely that even in a half day,

if it was available, in Melbourne,all _the

relevant matters could not be disposed of.

Finally, could I submit to Your Honour

that the case for special leave appears to be

weak to the point of hopeless. And whilst, Your Honour,
for reasons that I do not seek to argue with, does
not wish to go into the merits of the matter.to any
great degree, the fact is, as Mr Justice Toohey

pointed out, the application for special leave

that he was contemplating looked likely to fail

and that given that it is unusual in the extreme

for special leave to be granted fran a decision
of a single .iudge when the matter has not first

gone to the Full Court of that State, there is

no reason to believe that any application for

special leave arising from yesterday's decision

of Mr Justice Legoe is any stronger. Indeed,

we would submit, the grounds,put forward in so

far as they have been articulated, are

extremely weak. So, the prospects of success

on the application for special leave are extremely

thin, and, we would say, coupled with the background

of the·matter, and the factors relating to balance
of convenience that I have put to Your Honour, we

would submit this application should not be seriously

entertained; it should be dismissed.

HIS HONOUR:	Thank you, Mr Hayes. Yes, Mr Heerey?
MR HEEREY:	Your Honour, before my friend replies,. there

is one thing. It ·perhaps more strictly pertains

to Mr Richardson's client, but I am instructed to
raise it.	The present injunction which it is

sought to continue in effect, which is Your Honour's

injunction of Tuesday, the 4th, extended not only

to the part C statement - does Your Hdnour have

a copy of Your Honour's order?

HIS HONOUR:  Is it the same as the_proposed injunction

in the draft order?

(Continued on page 48)

C3T40/l/JM	47	12/10/88
Paringa

HIS HONOUR (continuing):  I do not have a copy of the

order I made, unless I have - Mr Gray, can you

answer that question? The injunction you seek,

is that in the same terms as the interim

injunction that I ordered last week?

MR GRAY~_Yes, we understand so, Your Honour. We are seeking

relief both in respect of the part C action and

also the proposed non-renounceable rights issue that

is due to commence on Friday.

MR HEEREY:  That confirms the basis of what I want to say,

Your Honour. The plaintiff has never in all

the interlocutory proceedings obtained, until

the ex parte application before Your Honour last

Tuesday, any injunction relating to the other

two matters; that is, the non-renounceable rights

issue and the Paringa take over.

HIS HONOUR:	Which paragraphs are they?
MR HEEREY:	They are paragraphs 4 and 5 of the draft.

So they did not get them on the ex parte application

orginally before Justice Legoe, they did not

get the~ of cours~-on the 29th when Justice Legoe

dismissed the application. Justice von Doussa
did not give them those injunctions on the

Saturday and the only time that they have been

successful was as a result of the ex parte

application before Your Honour on Tuesday and, in any event, Your Honour, we would submit, it would not be appropriate to include those two

paragraphs in the injunction which, ot course,

we say, it should not be made in any event.

HIS HONOUR:  Yes, thank you, Mr Heerey. Yes, Mr Gray.

MR GRAY:	If Your Honour pleases. The argument that perhaps Your Honour alluded to as to whether there was a judgment or an order of a sufficient-nature
to grant an appeal in this matter is taken up.
That, essentially, is going to raise a detailed
analysis of a number of facts.

(Continued on page 49)

C3T41/l/ND	48	12/10/88
Paringa

".MR GRAY (continuing):  Our case is that in practical terms

the refusal to act is leading to the complete

resolution of substantive rights in circumstances

that we will come to within the meaning of that

phrase. Alternatively, Your Honour has already

indicated that there are other events on that day,

that make the matter clear.

HIS HONOUR:  What is troubling me at the moment, Mr Gray,

is virtually the only ground that you advance in

favour of special leave to appeal,from yesterday's

decision,that it was a denial of natural justice.

How can you say that in the light of the transcript?

".MR GRAY:  Well, if Your Honour pleases, Your Honour has been

but given a number of references to it out of context.
We are happy to go through that and put the matter
into perspective. But Your Honour simply has not
had introduced to you the application we want

to make, the nature of the new evidence we wanted to

refer to, the confusion in Justice Legoe's mind as

to what he called "not a new issue" as distinct

from new evidence. His Honour simply took the view

that because a particular topic had been raised

and had been argued, the fact that new material,

new direct evidence came forward,was not relevant

because he in some way had had that issue touched

before.

HIS HONOUR:  You had an opportunity to expound the nature of that evidence, I take it from the transcript?

".MR GRAY:  Yes. If Your Honour pleases, we sought to expound

the nature of it and if Your Honour goes carefully

through the transcript Your Honour will find that

as we did that Justice Legoe was repeatedly saying

to us, "Well, that issue, for example, was raised.

I accept that this is new material, it is evidence as
distinct from inference but it is not a new issue", and

His Honour kept answering our application, "You

should hear this because there is new material

evidence that was deliberately withheld from you

by saying, 'I addressed that issue'',' a~.d simply

missed the point, begged the question. · Our case,

if Your Honour pleases, was that at the hearing

on 29 and 30 September the defendants had deliberately

withheld information, they had falsely and deliberately

put forward documents as being complete ones when they

were not.

(Continued on page 50)

C3T42/l/MB	49	12/10/88
Paringa

MR GRAY (continuing):  They did that to prevent our

being in a position to put hard facts before

the judge and His Honour says, "Well, that is

a matter that is relevant to the trial and,

therefore, I will not consider it as new

__ material on an interlocutory application".

He simply would not address his mind to the

point we wisted tD take. Every time we raised

it, he would skirt around it and put it off for, what we say.is when analysed, a reason

that cannot be supported.

Now, I am happy to take Your Honour through

that and to do so I need to start with the nature

of the new material and demonstrate to Your Honour

just how serious an omission it was from earlier

material and then, when Your Honour has that

background and Your Honour then looks at the way

in which Justice Legoe dealt with the matters,

Your Honour will see clearly how he was not

putting his mind to the matter in any real sense

at all.

Can I take Your Honour to page 9 of the

affidavit of Williams when we seek to surrnnarize

the nature of the material.	Does Your Honour
have page 9, paragraph 1.19?

HIS HONOUR:  Yes.

MR GRAY: If Your Honour pleases:

On 7 October, Paringa took inspection

of documents discovered by North Flinders

which inspection dislosed to Paringa for

the first time, new and critical information.

The first piece of information, Your Honour, was a letter dated 8 July 1988 and a report enclosed

prepared by North Flinders Mines' financial

adviser, the second defendant, May Mellor Laing

& Cruickshank, suggesting in terms strategies to

obviate the potential control changing and that

included a two-stage plan as follows - - -

MR RICHARDSON: Well, I object, Your Honour, to Your Honour being

taken to this material at this stage of these

proceedings or at all in these proceedings, if for

no other reason than this: that Mr Justice Toohey

in his reasons held, in effect, that it was

unnecessary to go into the facts or the merits of this case but held that it was not an appropriate

type of matter for this Court to grant injunctive

relief in relation to it.He did not deal with the

merits.

C3T43/l/SH	12/10/88
Paringa
MR RICHARDSON (continuing):	Now, even if one accepts, which

we do not, that the merits or the factual basis
for the merits has changed, it does not affect
the basis for Mr Justice Toohey's decision and
it is simply another way of rearguing the same

matter before another judge, in my submission.

HIS HONOUR~ Mr Richardson, it seems to me that it is

relevant to my assessment of the ground of the

present application for special leave, which has

as its heart the denial of natural justice by

reason of the refusal of Mr Justice Legoe to

allow the matter to be ventilated yesterday on

a further application for an interim injunction.

So at least to a limited extent I want to hear

what Mr Gray has to say.

MR RICHARDSON:	May it please Your Honour.
MR GRAY:	Your Honour, this letter, can I just put the
matter in context. It was my client's case that the certain steps taken on 19 September, the
part C statement, the non-renounceable rights
issue and the offer for Paringa were defensive
take-over measures.  At the time of the argument
of 30 September, we did not have available to us this letter of 8 July 1988. The letter of 8 July 1988 disclosed that the North Flinders
company had received expert advice about defensive
take-over strategies. Strategies to obviate the
potential control changing. This was a document
that had been held back and not produced and
it showed that shortly before, in point of time,
the relevant resolutions, that North Flinders
had been given advice.  The two strategies were:
first, that there should be an acquisition of
Paringa shares, acquire shares in the company that is seeking to take you over, as a defensive measure.
The second, Your Honour, was in the event of
extreme circumstance acquire shares in another gold producer for the purposes of diluting the
particular letter as an exhibit to Mr Burke's Paringa Holdings. Your Honour will find that affidavit, which in turn is an exhibit to the
William's affidavit.

If Your Honour can just pick up that

exhibit, Your Honour will find it exhibit GACl to

Mr Burke's affidavit. I am sorry, it is exhibit -

HIS HONOUR:	PMBS -
MR GRAY:	Yes, Your Honour, it is headed, C.L. May Mellor
Laing and Cruickshank and it starts, 8 July
and there is a handwritten note in the top, "see note on file", addressed to David Bradley of
Minter Ellisons.

C3T44/l/SR	51	12/10/88
Paringa

HIS HONOUR:	How far down the file is that?
MR GRAY:	Your Honour, it is perhaps three-quarters of the way
through.  May I pass Your Honour a working copy?

HIS HONOUR: Yes, I think that is easiest.

MR GRAY:--Your Honour will see that that is a letter from the

second defendant to Minter Ellison who are the

solicitors for North Flinders Mines. It is .....

North Flinders Mines, it is described as a"strategy plan."

And if Your Honour goes to the second page - - -

HIS HONOUR: Well, look, Mr Gray, I think you are taking me into

the facts of a depth that is undesirable or inappropriate.

What I would be grateful to you for, if you could just go to the transcript to which Mr Heerey has drawn my

attention and indicate the grievance that His Honour's

treatment of your submission arouses and which, I take
it, is the fundamental basis of the application for

special leave.

MR GRAY:	Yes, our point is that, if Your Honour pleases, we were
stopped in our application to have the interlocutory
application heard and we were not heard at all on the
interlocutory application.
HIS HONOUR:	Well, that is what - I would be helped if you were

just to illustrate that.

MR GRAY:	Yes, thank you, Your Honour. If Your Honour would just
give me a moment, I did not have these papers available
to me this afternoon, but Your Honour will see that at
page 34, line 23, after:

I had been able to identify certain matters that we want to argue but not develop the matter.

His Honour said that he could not see at that point

of time:

me in allowing this application for yet another	I cannot see that any of these points justifies
interlocutory injunction to be canvassed at this
stage in the light of the orders that have already been made, in the light of the fact, in
particular, that this trial was due to start at
10.15 this morning, and I do not think I should
really be called upon to give any further
reasons other than those that I have mentioned
in the course of discussion and I think I should
rule here and now that after lunch you should
open your case.
GRAY:  I have not finished our submission yet in regard
to the natter and we wish to continue them.
HIS HONOUR:  But I have heard sufficient to enable me to so rule.

That begs the question whether he has.

C3T45/l/VH	52	12/10/88 ,
Paringa

MR GRAY (continuing):

GRAY: It is not appropriate to hear the

application at this point of time -

That is being put as "Is that what Your Honour - -is putting?" and His Honour says:

That is right.

And Your Honour will not hear the application?

That is the proposed ruling?

HIS HONOUR:  No, I have entertained your

submissions now for I do not know how long

you have been on your feet, but I suppose it

is the best part of an hour, but whatever it

is I have got the point.

Which again begs the question. He say, he had

not got the point and he would not allow us to

develop it in a way that he could, with respect,

understand the point.	He says that he has got
the point:

I understand what you are getting at and I am not satisfied they raise new issues,

even the Panf ida order which would warrant

me in delaying any further the commencment of these proceedings and I so rule without giving any further reasons. This is my

ruling.

Your Honour will see that he again is back to

a new issue. Our case was not, "We've got a

new issue."; our case was, "We ha:ve discovered

new evidence" and His Honour - I take Your Honour

back through it - is consistently blocking us

by saying, "Well, it may be new evidence, but it

is not a new issue." We are not about a new issue;

we are about new material, not known to us before,

deliberately withheld from His Honour, that we want

to draw to His Honour's attention and every time

we try to introduce it, we are - if Your Honour

goes through it, Your Honour will find that

His Honour cuts across and comes back to say, "Well,

I understood that issue, but it is not a new i"ssue."

It is difficult, other than take Your Honour right

through the material, to put it in context.	My
learned friend's treatment of it, we say, was
exceedingly superficial and highly selective.

The point comes to a crisis at page 34. Your Honour,

one:part of the new material was seven pages of

some minutes, seven pages that had not been disclosed

in an earlier affidavit. The affidavit of

Mr den Dryver had said, "I attach the minutes of

a meeting of 22 August", but he failed to attach

the entire m±nutes. He left out seven pages.

C3T46/l/JM	53	12/10/88
Paringa

MR GRAY (continuing):  Those seven pages contained some

critical information.	We obtained that information
on discovery.	We then said to Justice Legoe, "We

have new information. We have new evidence. We have

new evidence that is very material to interlocutory

relief.	Had we had this evidence on 30 September
we say Your Honour's view would be different.	We now

want to argue the matter with the evidence that was

deliberately withheld from the Court and from us",

and His Honour says, "You can raise that in the trial",

as though that is an answer and gives us a remedy.

His Honour simply refuses to accept that that is

relevant to the issue of an interlocutory injunction.

If Your Honour just bears with me for a moment I

will pick that matter up. If Your Honour pleases,

it starts at page 18, that particular matter, when we

take up what is called exhibit JJRDD12A that
they are the incomplete minutes, at line 12: Has Your Honour had the document JJRDD12A,

which Your Honour will see concludes at

page 72? Mrden Dryver's affidavit swore

that that document was a true copy of the

minutes of the meeting of the board of directors held

on 22 August. That is false, and it is

demonstrably false.	There are further
pages.

HIS HONOUR:  That may be so. Where are

those further pages - they are in

exhibit 6, you say?

MR GRAY:	Yes, they are in exhibit 6.
HIS HONOUR:	Page 620, and they continue

through to page 623.

Then we move on to the adjourned meeting and we go

on to then discuss what is in, in fact, the seven

missing pages - the meeting of the 22nd became

an adjourned meeting.	But they were critical
documents, if Your Honour pleases, because those

minutes disclosed that on 22 August and the

adjournment of that meeting the Paringa

shares was discussed. Mr Bates of May Mellor came

and attended the meeting and that gave the clue to

his earlier advice, and what was being discussed by

the board on the 22nd through to about 29 August was

defensive take-over matters. Now, that was entirely

contrary to what His Honour had been told by the

defendants on 30 September and we now had in documents,

as hard evidence from the defendants, material that

showed that His Honour had been misled;	and that
is what we wanted to develop.

C3T47/l/HS	54	12/10/88
Paringa

MR GRAY (continuing):  Now, we identify that and then

we continue to identify that material and then,

at the foot of page 19, His Honour, we say,

misses the point entirely. He says at line 35:

All of that may be very material evidence,

no doubt, for the trial but it does not
really add to the basic grounds upon
which you sought an interlocutory
injunction. These allegations were made
by the plaintiff when you were before me

on the 29th and 30th by way of imputations.

You said I should imply or I should infer.

I think that was the word that was used.

Mi:- Gray:  My learned friend has told Your Honour it

:was an improper inference to draw.

His Honour:  That may be so but the question that I was

asked to determine as a serious question

to be tried which combinedwith the balance

of convenience rendered essential for me
to protect the plaintiff's interests were

matters that were all before me on this,

if you like, very broad spectrum. This

simply itemizes in more detail what was

put to me on the 29th and 30th and I ruled

on it on the 30th.

Gray: It does not itemize it in a way.

What it is it is hard evidence and not

inference.

His Honour: Yes.

Gray:  Why was it sworn? We had the minutes

of 22 August when we did not and specifically what was held back was the very clue that put

us on - have led to a live inquiry on the

advice given by Bates.

His Honour: That is not a matter I can

determine on an interlocutory application,

Why that was not disclosed to me upon that

previous occasion? It would be very relevant,

no doubt, upon the trial.

We say that is demonstrably wrong. The fact that

His Honour was misled on an interlocutory application

prima facie is very relevant.

HIS HONOUR: Well, Mr Gray, can I take you to two of the other

matters that were raised by your opponents?

MR GRAY:  Yes.

C3T48/l/SH	55	12/10/88
Paringa

HIS HONOUR:  Firstly, the point that Mr Hayes made about

ADL?

MR GRAY:  Yes. If Your Honour pleases, ADL were allowed

to intervene.	They have never sought, as I understand
it, and I sta?d	to be corrected, any extension
e-f-the undertaking	have raised that particular
matter at any time before Justice Legoe.	I understand -

I was not present - that it was raised before

Justice Toohey. But then .they have never gone to Justice Legoe and said, "Under liberty to apply we need some

variation of this matter to protect us." It is.

being raised in this Court never where they would have obviously an avenue if there was an area of

prejudice in which they need protection.

MR HAYES:  It was raised before Justice Legoe and there

were written submissions about it.

HIS HONOUR:	And what about - - -
MR GRAY:	Well, I just cannot confirm that, Your Honour,

I am sorry, but certainly there has been no liberty to apply to Justice Legoe on that basis

and, in any event, we join issue, we say that they

are protected in the way that we put to Your Honour

before. And, in any event, there is no

demonstrable prejudice being demonstrated in the

space of the next two days.

HIS HONOUR: Well, perhaps we can discuss that further in

a moment. What about the point that Mr Heerey has

made about the extent of the relief sought and the

fact that paragraphs 4 and 5 go beyond - apart

from the brief interim injunction that I gave - any

relief that you received.	What do you say about
those paragraphs?

MR GRAY:	We say, if Your Honour pleases, that that has now become critical with the passage of time.
Your Honour, can I just put the chronology to
Your Honour. That order was not sought on 23 September
when the first ex parte application was made because
those events were not to take place until 14 October.
There was no reason for pressing ex parte relief.
They were sought and refused by Justice Legoe on

T49	30 September. They were not sought on the application
before Justice von Doussa because they were not then
pressing relief. We did not want to complicate the
matter, we wanted to avoid the imminent danger.

I was not present before Your Honour in the

ex parte matter, but by that time the approaching date

for the proposed rights issue and the Paringa takeover

was much closer. It is now critical because on the

14th those debts will occur and we do not wish them

C3T50/l/MB	56	12/10/88
Paringa

to occur. We seek to avoid that until our

argument has been heard. So it has now become

critical, whereas before at the earlier points

in the case it was not critical and was not

pursued as being,at that point of time, not

critical and therefore simply distracting to

deal with. So that is the answer as put,

-out it has now become critical, because both those

matters take effect on Friday and come into

operation on Friday.

(Continued on page 58)

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HIS HONOUR:  Thank you, Mr Gray.

I have come to a firm conclusion that it is

proper for me to grant the interim relief that is sought.

I will want to discuss in a moment the question of

-ADL shareholders raised by Mr Hayes with particular

reference to the scope of the undertaking as to damages

by the applicant.upon which the grant of interim

relief will be conditioned. I will refer to a

number of points that have been made by the

respondents just to briefly indicate my view in

respect of them.

The point that Mr Richardson made about the

jurisdiction of the Court is met, in my view, by

reference to the transcript of the proceedings

before Mr Justice Legoe and the clarity and

firmness of the ruling that he delivered. In my

view, His Honour clearly gave a decision which was

capable of affecting substantive rights. They may,

or may not, have been capable of protection in other ways than by the grant of interim relief.

I am conscious of the force of the judgment

of Justice Toohey and I, of course, accord the

greatest respect to His Honour's reasons. There
are two factors that lead me to come to a different

conclusion, on the circumstances that are now before

me, to the conclusion to which His Honour came

yesterday. First, the prospect of a hearing and

determination of the applications for special leave

has firmed in the intervening period and it is now

likely that those matters can be determined on

Friday. I am influenced by the innninence of that

T51 outcome.

The second consideration is that although

Justice Toohey said in the course of discussion

after handing down his reasons that he would not

be minded to come to any different conclusion by

reason of the possibility that the hearings would

proceed on Friday, His Honour associated with that

observation the fact that the hearing of the action

had begun in Adelaide and that it was clearly open

to the learned trial judge in that action to consider

afresh an application for interim relief.

Such an application was sought to be made

in the course of that hearing since it connnenced

yesterday and the applicant is confronted with

a situation in which, on a reading of the transcript,

it is, I think, fair to say it was unable to prosecute
its application for interim relief before the

learned trial judge.

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The strength of the application for special

leave to appeal from His Honour's decision is

difficult to assess. Ordinarily, of course,

one would credit an application such as this with
grave difficulty but it seems to me that the present

T52. _circumstances are not ordinary.

Indeed, there has been a very extraordinary course

of proceedings and I appreciate the force of the

complaints that the respondents have made in that regard.

But, nevertheless, I am confronted with a situation

which I must evaluate as at today and I believe that

there is merit in the application for special leave
to appeal, having regard to the ground expressed

in section 35A(b) of the JUDICIARY ACT which reads,

as to the matters to which the Court shall have

regard in hearing such an application -

"whether the interests of the administration
of justice ..... in the particular case, require

consideration by the High Court of the

judgment to which the application relates." -

and that the circumstances will require the Court

to give serious consideration to the application

for special leave.

I am strongly affected, I must say, by the question of the balance of convenience. The alleged

damage to the applicant, if it were to eventuate,

would seem to me to be substantial. On the

other hand, while recognizing the public interest

to which counsel for the defendants and intervener

have referred and seeking not to underestimate the

seriousness of the interference with the share market,

nevertheless I am not persuaded by their submissions

that to freeze the matter for a further 48 hours

would be attended with serious detriment sufficient

[53 to outweigh the risk of harm to the applicant.

I am not sure if that is a complete recitation

of the different matters that have been canvassed

this afternoon, but I trust that they are sufficient
to indicate, despite their brevity, the reasons why

I have come to the conclusion that the interim relief

should be granted.

In the absence of further order, the relief I

grant will expire at 6.00 pm Eastern Standard Time

on Friday. As I have said, I am influenced by

the imminence of a hearing. If that hearing was
not imminent I may have been led to give a different

evaluation to the balance of convenience and that

may have affected my decision.

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I would also condition the grant of relief

on an extension of the usual undertaking, as to

damages to cover any damage suffered by shareholders

of ADL, to accommodate the point that Mr Hayes made

with respect to his client.

(Continued on page 61)

C3T54/3/MB	60	12/10/88
Paringa

MR GRAY:	Your Honour, that is a matter on which we have had no notice at all an~ I have no instructions
and, of course, it cannot be given without
instructions.
HIS HONOUR:	You have expressed the view that, ·in your

-submission, the undertaking already given

covers it.

MR GRAY:  Yes, would act -:in the event there was a claim,

it would, but I will need time to get instructions.

I simply have had no notice and my present

instructions do not extend that far.	The point
has not been taken up.	They can be obtained
straight away.

HIS HONOUR:  Yes. I regard it as a significant factor in

the situation.

MR GRAY:  I understand, Your Honour. I was simply informing

Your Honour that we had no notice that would be raised and hence have not given prior attention

to it.

HIS HONOUR:  If I make the order subject to such an

undertaking, that leaves you free to secure them

before the order is processed.

MR GRAY:  Yes, and if we have any difficulty in making

contact with the appropriate personnel, we will

come back before Your Honour, but I will have

inquiries made immediately.

HIS HONOUR:	I hope it is not necessary to come back.
MR GRAY:	Yes.

(Continued on page 62)

C3T55/l/JM	61	12/10/88
Paringa

HIS HONOUR:  The final matter is that the interim relief

will extend to all the grounds that are listed

in the proposed order. Is there any further

matter to which I should address?

MR HEEREY:	Would Your Honour reserve the costs?
HIS HONOUR:	I think costs should be reserved.
MR HAYES:	Would Your Honour reserve liberty to apply?

It seems to be implicit in these proceedings, but

you never know.

HIS HONOUR:  To apply to you? Yes, you seem to be

credited as a party, Mr Hayes.

MR HAYES:  I meant liberty to apply to the Court in the

event that something should interpose between now

and Friday, Your Honour.

HIS HONOUR:  Liberty - yes, I see no reason not to include

such - do you wish to be heard on liberty to apply?

MR GRAY:	No, we are happy with that and we are quite happy
that costs be reserved, if the Court pleases. Your Honour, just in terms of the undertaking,
once I have those instructions can I communicate
to  Your Honour that I do give that undertaking
through Your Honour's associate, or does
Your Honour wish to reconvene in Court?

HIS HONOUR:  You could do it to the Registrar. I would hope

it will not be necessary to reconvene the Court,

but I will be available until 6.30, or so,

6 o'clock if it is found to be necessary, but

I trust it will not. If there is nothing else,

that concludes the matter.

AT 4.39 PM THE MATTER WAS ADJOURNED SINE DIE

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