Paringa Mining & Exploration Company Plc v North Flinders Mines Limited

[1988] HCATrans 229

IN THE HIGH COURT OF AUSTRALIA

Registry No Cl6 of 1988

B e t w e e n -

PARINGA MINING & EXPLORATION

COMPANY PLC

Applicant

and

NORTH FLINDERS MINES LIMITED,

c.t. MAY MELLOR LAING &

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

CLEMENS FREDERICK WEGENER,

PETER RICHARD MITCHELL,

DEAN WILFRED HOSKING

Respondents

For judgment

Paringa

TOOHEY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 11 OCTOBER 1988, AT 4.34 PM

(Continued from 7/10/88)

Copyright in the High Court of Australia

C3Tl/l/RB 145 11/10/88

HIS HONOUR:  I am of the opinion that the application for

further injunctive relief should be refused and that

the order made by Justice Wilson on 4 October be

discharged.

I publish my reasons.

MR G.J.D. RICHARDSON:  Your Honour, I appear for the first

resppondent and its directors, the third to seventh
respondents.

I do not know whether Your Honour has dealt in

the order with costs but I ask for the costs of the

application if Your Honour has not.

HIS HONOUR:  I have not dealt with the question of costs in my

reasons, Mr Richardson, no.

MR RICHARDSON:	I ask for the costs of the application.
HIS HONOUR:	Is there any similar application on behalf of other respondents.
MISS N. MORRIS:	Your Honour, I do not have any such application.

I do not have any instructions in that regard.

HIS HONOUR:  Miss Morris, you appear for the second respondent?

MISS MORRIS: That is right, Your Honour.

HIS HONOUR:  I think I would like to understand what it is that

you are doing. Are you seeking costs on behalf of the

second respondent or not?

MISS MORRIS:	Yes, Your Honour.
HIS HONOUR:	Very well.
MR D. EPHRAUMS:	Your Honour, I appear onbelalf of the intervener

and I am also instructed to apply for costs.

HIS HONOUR:  Yes, very well. Mr Nichol.

MR I. NICHOL:  In this matter I appear on behalf of the appellant.

rt would be my application that the question of costs

be dealt with at the time of the special leave hearing.

I also understand, Your Honour, that there have been

some further developments in Adelaide and my instructing

solicitors in Adelaide are in fact proposing, or are in

fact on their way to the Court at the moment.

HIS HONOUR:  On the way to which Court?

Tl MR NICHOL: This Court, Your Honour.

HIS HONOUR:  Oh, are they?

C3T1,,/l/RB	146	11/10/88
Paringa

MR NICHOL:  I understand they have spoken to the Registrar and

through him to the Chief Justice and I understand that

an application for further injunctions is likely to be

before the Court on Friday and it would be my

application that perhaps Your Honour's order might

be stayed for an hour to enable them to come to the

-~-Court and make further argument.

HIS HONOUR:	Before whom?
MR NICHOL:	I understand that Mr Justice Wilson may be available,

but obviously we were not able to determine that

question until Your Honour's order had been made today.

It may have been that Your Honour had decided to grant

the injunctions in which case all of that would have

been - - -

HIS HONOUR:  Mr Nicol, when you say that an application for

further injunctive relief is contemplated for Friday,

is that associated with any other application?

MR NICHOL:  I am sorry, Your Honour, I think I misled you in

saying that to you. I think what has actually happened

is the Chief Justice is going to list the special leave

application on Friday.

HIS HONOUR:  Where?

MR NICHOL: In this Court, Your Honour.

HIS HONOUR:  Yes, but I mean where geographically? The Court

will not be sitting here on Friday; it will be

sitting in Sydney and Melbourne.

MR NICHOL:  I am afraid I cannot answer that question.

HIS HONOUR: It is a matter of some importance, I think, to know

whether or not the application for special leave is

in fact scheduled to be heard on Friday~ It may not

matter if all that I am being asked to do is to grant

an injunction - or grant a stay of my order for an

hour, but I will hear from other counsel in a moment,

but such a short stay may be fairly unproductive and

what happens at half past 5 if a Justice of the Court

is not immediately available.

MR NICHOL:  It would obviously be more convenient for a stay to be granted until Friday. If Your Honour was prepared

to grant a short period of an adjournment so that I

could make some further inquiries as to the situation

in relation to listing the special leave application

and where it was to be heard, I might be able to tell

T2 Your Honour more fully.

HIS HONOUR: Well, I think at least as a beginning I would need

to know - and other counsel would need to know - whether

the application for special leave will in fact be

C3Tl.,,/~/RB	147	11/10/88
Paringa

listed or whether it will be listed if it is reached

or if it will be listed subject to any other

conditions. Because at the time the matter was argued before me it was on the basis that the application for special leave had not been given a listing.

MR NICHOL:  Yes. Unfortunately, Your Honour, I was not privy to

those earlier arguments- - -

HIS HONOUR:  No, I appreciate that but I just do not want to

be asked to do arything which proves in the end to be such a short stopgap that we are all back here again

in an hour's time.	I will see what other counsel have
to say.

MR NICHOL:	Thank you, Your Honour.
HIS HONOUR:	Mr Richardson.

MR RICHARDSON:  Your Honour, any further stay is opposed. We

have indeed been notified very recently by telephone of some developments in the South Australian Supreme Court and my understanding is this, that the matter

commenced today - or was to commence today before

Mr Justice Legoe for the substantive hearing in the

Supreme Court in Adelaide today. I am instructed

that after notice being given late last evening, yet

another application was made - - -

HIS HONOUR: Notice by whom to whom?

MR RICHARDSON: Notice by the solicitors for the applicant,

Paringa Mining & Exploration Company, to my clients -

the solicitors for my clients. An application was

made this morning at 10 am before Mr Justice Legoe

for yet another injunction of a similar kind to the

type that Your Honour is dealing with. I understand

that the papers in support of that were_only handed

to the legal advisers of my clients in Adelaide at

10 o'clock.

Mr Justice Legoe gave those legal advisers until

noon to read the papers. At noon - - -

HIS HONOUR:  Can I just interrupt you? Did the hearing of the

T3 substantive action then proceed?

MR RICHARDSON:  There is an intervening step which I am just

describing, Your Honour. My understanding is that

the substantive matter was being opened as at 2.15 or

2.30, whatever time the court resumes, but after lunch

today. Our information is that while we were being

given the information, counsel for the plaintiff there,

the applicant here, was in fact opening its substantive case. And Mr Justice Legoe, to cut a'long story short,

after considerable argument which consumed

the rest of the morning, said that he would not then hear_

C3T4/1/RB	148	11/10/88
Paringa

the further temporary injunction application because

there was no_new material that had been placed before

him and that it was not appropriate to do so while the

substantive matter was running.

Now I understand - we had then been informed, so

-~ram told by the solicitors for the applicant here,

that counsel are hotfooting it to Canberra to make

application to this Court for injunctive relief on an

application for special leave to appeal against that

further order - I use the word loosely - of

Mr Justice Legoe. My instructions - - -

HIS HONOUR: When you say that counsel are hotfooting it, how

far has their hotfooting taken them?

MR RICHARDSON:  We understand they may be on an aeroplane and

indeed my instructions were that the notification that

this was happening occurred so late that any counsel
who were seriously and deeply involved in this matter -

it does not include myself - were not able to come to

Canberra. But we understand they are on their way.

That was the information that we had been given.

My application would be to refuse any application

made today for furtherstay in the exercise of your

discretion and, Your Honour, my instructions are - I

do not know whether Your Honour has been taken through

the history of applications that have been made in

this case - - -

HIS HONOUR: Oh indeed I have, yes.

MR RICHARDSON:  There have been a whole series of applications

made to various judges at various times - - -

HIS HONOUR:  You can take it I am familiar.

MR RICHARDSON: - - -sometimes with notice to my instructing

solicitors and sometimes without notice and the result

of all of those applications has been that at this

·stage, subject to Your Honour making the order that Your Honour has foreshadowed in the judgment just

T4	handed down, that there is no injunctive relief. Our submission is that it would be an abuse of process
or at least that the exercise of discretion ought to
go against the applicant in any further application for a stay, particularly having regard to the fact that the matter is being fully litigated in front of
the trial judge at this very moment.

The question of further injunction has been

raised in front of him yet again at length this morning

and he has indicated, not making a final order, he has

indicated that it was not appropriate for them to pursue

that application at that stage.

C3TS/1/RB	149	11/10/88
Paringa
HIS HONOUR:	Yes.	I wonder what you mean by "at that stage".

I rather took from what you said a moment ago that

Mr Justice Leg·oe was unwilling to hear a renewed

application for injunctive relief while the action

itself was progressing. Now, if that is His Honour's

attitude at this stage, it might mean pending the

--completion of the hearing in the supreme court.

MR RICHARDSON:  I am relying a little bit, Your Honour, on

information I am given, but my understanding is

twofold: first of all, that he would not hear the -

his attitude was that he should not hear the application

initially until the case had been opened in full, but there was argument, indeed, for approximately an hour

on the question of the application for injunctive relief,
and he was then of the view that at that stage there

had been no fresh material placed before him which would

cause him to have a different view from the view he had

heard on earlier occasions.

HIS HONOUR:	Whether the disposition of the present application in this Court represents new material, of course,
would be a matter for His Honour, but it is conceivable, I suppose, that it might be viewed in that way by him.
MR RICHARDSON:	He no doubt would have made aware that a

judgment was being given today and the risks of that

judgment would have been fully brought to his attention,

no doubt, although I cannot say that from knowledge.

But if there is to be any further moves to challenge

the decision of Mr Justice Legoe, in my submission it is

TS not appropriate for it to be brought before this Court.

HIS HONOUR: Well that may or may not be so. Counsel have not

had the opportunity, of course, to see my reasons, but consideration is the fact that the matter is before the supreme court and that there are appeaB pending before the Full Court.

Yes, thank you. Miss Morris, do you want to

say anything about this matter?

MISS MORRIS:  No, Your Honour, as I understand it, the

second respondent is in a slightly different position

because we have no papers in this matter and did not

even have a suspicion of an application this afternoon

until 3.30 this afternoon. We do not have counsel on

the way here and we would certainly want to oppose any

application.

HIS HONOUR:  You are a party to the supreme court action, are

you not?

MISS MORRIS: That is right, Your Honour.

HIS HONOUR:  Very well.

C3T6/l/RB 150 RICHARDSON 11/10/88

Paringa	MISS MORRIS
MISS MORRIS:	My instructions are that if an application for

special leave is not fixed for this Friday, we would

want any application adjourned until tomorrow when

counsel could be present and if the application is to

go ahead this afternoon, that it be adjourned until

at least 5.30.

HIS HONOUR: Well, when you say application, do you mean the

application that Mr Richardson foreshadowed?

MISS MORRIS:  Yes, Your Honour.

HIS HONOUR:  I cannot do much about that in terms of when it is likely to be heard. I gather from what Mr Richardson

said that the papers have not arrived yet.	Very well,
thank you.

Mr Ephraums.

MR EPHRAUMS:  Your Honour, I too did not receive any indication

of the foreshadowed application until after 3.30 so

in consequence of that I have no instructions.

Accordingly, if Your Honour is minded to make any order,

whether by way of stay of the order Your Honour has foreshadowed in your reasons for judgment or by way

of further injunctive relief, I wouldm:rely request
that the applicant be required to make the usual
undertaking as to damages and that my client's rights

to make any further application be reserved.

T6 HIS HONOUR: Yes, thank you.

Mr Richardson, just before I go back to Mr Nichol,

I do not know that you responded specifically to

Mr Richardson's suggestion that the matter be adjourned

just for a few minutes to enable the situation

regarding the hearing of the application for special

leave to appeal to be determined.

MR RICHARDSON:  Your Honour, I would never want to be heard to

be difficult in that area, save that our discussions -

and it is a matter for checking - are that there will

not, indeed, be a Justice available later in the

afternoon.

HIS HONOUR:	No, no, that is not the point I am making.
MR RICHARDSON:	I am sorry.
HIS HONOUR:	I understood what Mr Nichol was seeking was a brief

to to to
adjournment enable him be able inform the application for special leave to appeal being heard

this coming Friday.

MR RICHARDSON:  Your Honour, I am entirely in Your Honour's

hands there. My submission would be, even if the Court

C3T7/l/RB	151	11/10/88
Paringa

is available to hear the substantive matter on

Friday, that Your Honour would exercise his discretion in the circumstances of this matter and not grant a further stay of one kind or another.

HIS HONOUR:  Yes, I understand that. Thank you.

MR RICHARDSON:  But I certainly could not oppose a short

adjournment to ascertain what the situation is. I

suppose I would say that that should have been ascertained

before 4.30 when Your Honour was coming on to the

bench.

HIS HONOUR:  Yes, well that is fair comment, I think.

Mr Nichol, is there any reason why that

information was not sought before judgment was

delivered?

MR NICHOL:  Your Honour, I am in much the same position as my

friends were. I received a telephone call at 3.30

from an aeroplane and came to Court and it was

unclear to me then precisely how events would unfold.

Perhaps in hindsight I should have checked more

carefully that point but I did not.

HIS HONOUR:  Can you throw any more light on what happened

before Mr Justice Legoe this morning or this afternoon,

in particular precisely what His Honour said regarding
his willingness or unwillingness to hear any further

application for injunctive relief?

MR NICHOL: Unfortunately, Your Honour, I am unable to give any

more clarity than Mr Richardson or give any further

explanation than Mr Richardson has given and I am

unable to say whether what he has been told is in

accordance with any instructions that might be given

to me.

HIS HONOUR:  I take it you are not able to say with any

precision when counsel are likely to arrive this

evening, with the view to filing or making an

application for special leave to appeal from whatever

T7 Mr Justice Legoe may have done today?

MR NICHOL:' All I can say is that I understand that they had left

Adelaide or .were in the process of leaving Adelaide at 3.30 and I was given an estimate by the solicitor of 5.30 in the Court but I think that has got to be

treated for what it is which was an estimate.

HIS HONOUR: I ~uppose.in_terms of stock exchange dealings, and

looking at it in terms of the immediate situation,

your only concern would be in respect of a non-eastern

State exchange, would it; the West Australian ExchangP.?

C3T8/l/PLC 152 11/10/88

Paringa

MR NICHOL:	Yes, I suppose that would be the case.
HIS HONOUR:	Because, given the hour, I assume that no other

exchange is open.

MR NICHOL:	Given the hour, the other exchanges have closed, yes.
HIS HONOUR~	Does that represent, of itself, a problem to

your client, the Perth Stock Exchange?

MR NICHOL:  I do not know, Your Honour. I cannot tell Your Honour.

In fact, in honesty, the question	of the Perth
Stock Exchange had not crossed my	mind, but, yes, that
would be a problem.

HIS HONOUR: Yes, thank you.

MR RICHARDSON:  Your Honour, could I just add one thing which

I should have put earlier?

HIS HONOUR: Yes, Mr Richardson.

MR RICHARDSON:  In relation to the hearing this morning, I am

instructed specifically that Mr Gray, QC, who appeared

for the plaintiff - they are the applicant here - made

lengthy submissions to the court and took Mr Justice Legoe

through the supporting evidence and affidavits upon which

the plaintiff intended to rely in relation to the further

application for injunctive relief. So, the matter was -it was not just a case of Mr Justice Legoe saying, "Let's

put that down until later". He actually had all the

material placed before him in support of the application

and notwithstanding that he said, "There's no new material,

I will not deal with it now."

There has, in fact, been - and perhaps I should place

it before Your Honour - an affidavit prepared at very

short notice on information and belief by a member of my

instructing solicitors which sets out the materi~ls and

I seek leave, Your Honour, to file that in Court and hand it up to Your Honour.

(Continued on page 154)

C3T8/2/PLC	. 153	11/10/88
Paringa

HIS HONOUR:  Yes, may I see it, please? Have other counsel seen

it?

MR RICHARDSON:  They have not, Your Honour. We only have two

copies. I will make them available to them.

HIS HONQUR: Paragraph 9, Mr Richardson, reads:

Mr Myers, QC, resisted the making of the

application. -He outlined the history of

previous applications made by Paringa .....
advised the court that he believed it

inappropriate for any application to be

entertained prior to the opening of Paringa's

case and the leading of evidence.

MR RICHARDSON:  Yes, Your Honour.

HIS HONOUR: Slightly ambiguous. Is it being said that no

application should be entertained until, as it were,

the closing of Paringa's case or before the - - -

MR RICHARDSON: Well, the initial application, I think, was,

what the evidence would be. not until the opening; not until the judge was told and the view of the judge was, I think, Your Honour,

HIS HONOUR: Yes.

MR RICHARDSON:  And then after that - I understand that this

runs sequentially and that what is set out in 10

then occurred after what occurred in 9, that is,

of that application but the case did not start	the judge was taken through the material in support
opening until 2.15 or after lunch today.

HIS HONOUR:  And how far did the opening get?

MR RICHARDSON:  I do not know, Your Honour. The opening was

in progress at the time we were having the telephone

conversations and that is an hour-and-a-half or two

hours ago. Of course, they are half an hour behind us there.

HIS HONOUR: Sure. Thank you. Mr Nichol, I am quite happy to

give you that short adjournment for the purpose of

finding out something more about the application

for special leave to appeal. I do not know that it

is going to affect the outcome of the matter

particularly but if you want an adjournment for that

purpose I will give it to you now.

MR NICHOL:	Thank you, Your Honour.
HIS HONOUR:	I take it five minutes is, really, all you would nee~?
MR NICHOL:	Yes, I would think that would be sufficient.

C3T9/l/PLC	154	11/10/88
Paringa

HIS HONOUR:  I will adjourn for five minutes or until counsel

tell me otherwise.

T9	AT 4.57 PM SHORT ADJOURNMENT
UPON RESUMING AT 5.03 PM:
HIS HONOUR:  Yes, Mr Nichol?
MR NICHOL:  Your Honour, I have spoken to the Registrar of the

Court. I understand from him that the special leave

application is listed in Melbourne on tne basis that it

will be dealt with if time is available on that day and

that the Court will not sit past 5 o'clock. The Registrar

also ventured the opinion that he thought there was a

reasonable prospect of it being dealt with on that day,

but I put it no higher than that.

In those circumstances, Your Honour, I would submit

the following: that the question of costs of the

injunction should be left for argument on Friday, if

that is possible.

HIS HONOUR: Well, argument before whom? Before me?

MR NICHOL:  I do not know whether Your Honour is sitting - is

Your Honour sitting in Melbourne on Friday?

HIS HONOUR: Well, whether I was or not, I am not sure what you

are suggesting, Mr Nichol. Are you suggesting that on
the application for special leave to appeal the bench

would be asked to deal with the costs of this application?

MR NICHOL:  No, Your Honour. I am sorry, I was not suggesting

that.

HIS HONOUR:  It would have to come back to me, would it not,

if I stood them over?

MR NICHOL:  Yes, I think that is right.

HIS HONOUR: Why should I stand them over? What is likely to

happen either on Friday or on the special leave

application that would amount to a relevantly new factor?

MR NICHOL: Well, it may be, Your Honour, that there are matters

that arise from the special leave application that might

be able to be put to you in relation to an argument as to

costs.

HIS HONOUl'":  Yes, thank you.

'	C3Tl0/llPLC	155	11/10/88
Paringa

MR NICHOL:  And the second submission is in relation to the

injunctive relief, if you like, or the special leave

application itself. Simply taking what I can from the

affidavit filed today, it would seem, from what I am

able to piece together, that there is counsel coming

from Adelaide today with some proposal to make an

a~gument before the Court and they are obviously in a

position to tell the Court a lot more than I am able to

tell the Court. There is, as Your Honour has already outlined, sare

concern - there is a concern, clearly, on behalf of my client, as

to the trading that may go ahead in Western Australia

today and it would seem appropriate, if I can use that

word, that there be an opportunity given to the applicant

to make a further application to this Court for an

injunction, particularly as the special leave hearing

TlO appears now to be so close.

HIS HONOUR:  Yes, thank you. __

application to grant injunctive relief pending the The application that I have just refused was an

hearing of an application for special leave to appeal

from what was said to be decisions of the Supreme Court

of South Australia at first instance and on appeal.

On appeal is perhaps a rather loose way of putting it

because the decision from which special leave to appeal

was sought was said to be a decision of the Chief Justice

of the supreme court in relation to the hearing of an

appeal to the Full Court. These are matters that I have

dealt with in my reasons for judgment.

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. There are, however,

two other considerations: one is that I am told that

another application for special leave to appeal and

what I assume to be an ancillary application for

injunctive relief is on its way to this Court. I am

also told that today in the Supreme Court of South

Australia Mr Justice Legoe declined to hear or at

any rate deal with a further application for an

injunction, but the circumstances under which His Honour

so declined have not emerged with great precision and

in particular I cw,not know whether the existence of

the application before the Court and the fact that a

decision had not then been given was a consideration in

His Honour's mind.

But because of the two matters I have just

mentioned, namely the possibility of another application

to this Court and the possibility of a renewed

application to Mr Justice Legoe possibly when the

plaintiff's opening in the supreme court action has

concluded, and again given the existence of the time

change between the western and eastern seaboards, I

do think there is a reasonable case for a stay of my

C3Tll/l/PLC	156	11/10/88
Paringa

order or a suspending of that order - which is a matter

I will hear from counsel on in a moment - until some

Tll time tomorrow. But I do not think that stay or

suspension should extend beyond 2 pm. It would give

the parties an opportunity to read my reasons for

judgment, consider those reasons, and also to consider

their position so far as a further application to this

Coitr-t is concerned or a renewed application to

Mr Justice Legoe is concerned.

I propose to make an order foreshadowed when I

delivered or announced the result of the application.

relief is refused and that the order made by	I said that the application for further injunctive
Justice Wilson on 4 October should be discharged.
There was no formal motion for a renewal of injunctive relief but the terms of Justice Wilson's order were
such that they continued until further order. It seems
to me that probably all I need do in relation to the
application itself, leaving aside the question of costs fora moment, is simply order that Justice Wilson's
order of 4 October 1988 be discharged, I will give
counsel an opportunity to speak to the orders I propose in a moment.

But that, I think, would be the first step.

So far as costs are concerned, I see no reason why

costs should not follow the event. The application has been unsuccessful. I am unable to see that the fate of an application for special leave to appeal really bears

question of costs and so I propose to order that the	sufficiently on that matter to justify reserving the
applicant pay the respondents' costs.

There then comes the question of what ought to be

done, and in particular what formulation ought to be

used so that the position isheld at least until

2 pm tomorrow. It seems to me it could be done by way

of perhaps a suspension of the order that I have

indicated I woµld make. A stay seems to me to be

rather inappropriate since the order that I have in

mind is discharging Justice Wilson's order of

4 October but it may be that that seems to counsel

Tl2 the more appropriate form of relief.

I suppose the other option is that having discharged

that order, I coµld simply grant an order in the terms

of that order, limited until 2 pm tomorrow. That is

not an option that I particularly favour, but again, I

am prepared to hear from counsel on that.

MR EPHRAUMS: Your Honour, before proceeding to that matter,

the order as to costs that you have foreshadowed does

not deal with the costs of the intervener. Do you

contemplate that they will be paid by the applicant?

C3Tl3/l/PLC	157	11/10/88
Paringa

HIS HONOUR: Yes, I do. I was told, Mr Ephraums, that the

intervener had been given leave to intervene by

Mr Justice Legoe by the Supreme Court of South Australia

and the intervener appeared without objection before

me so unless Mr Nichol can offer me a fairly convincing

reason why your client should not have the costs, I

wou_ld include those in my orders for costs.

(Continued on page 159)

C3Tl3/2/PLC	158	11/10/88
Paringa

MR EPHRAUMS:  Thank you, Your Honour, I was not aware of the

circumstance·s in which the intervener had appeared.

HIS HONOUR:  Do you want to be heard on the question of costs

of the intervener?

MR NICHOL:  I have no instructions on that point and therefore

I do not think I would be able to provide a

convincing argument, Your Honour.

HIS HONOUR:  While you are on your feet, Mr Nichol, in the

ask me to do by way of holding the position until light of what I have just said, what is it that you

2.00 pm tomorrow, which is as much as I am prepared

to do?

MR NICHOL:	I am in Your Honour's hands there.
HIS HONOUR:	Not entirely. You might be in the end, but I

would still like to hear from counsel as to what

they think is the most appropriate way of meeting

this contingency.

MR NICHOL:  As I understand it, there are three options that

Your Honour has suggesting in descending orders of

priority.

HIS HONOUR:  No, they were not offered in any sense of priority,

Mr Nichol, they were just offered as possibilities that occurred to me.

MR NICHOL: There is the suspension of Your Honour's order

until 2.00 pm tomorrow.

HIS HONOUR: Or a stay of that order.

MR NICHOL:  or the stay of that order until 2.00 pm tomorrow

or making a fresh injunction. It would seem to me

that - I think it was Mr Justice Wilson who gave the

original injunction - is until further order so that

the effect of Your Honour making an order today would

be to dissolve the injunction and therefore it would

seem - - -

(Continued on page 160)

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HIS HONOUR: Well, I think I should make an order that leaves

no doubt as to what I have done and that is to discharge

that order.

MR NICHOL: Yes, and therefore, perhaps, it might be more

appropriate for Your Honour to make an order in the same

tenn~ as His Honour's previous order with it to

fall at 2 o'clock so that there is no mistake that

an order is in force, and as to its terms.

HIS HONOUR:  Yes. If I made such an order, I do not think I

should make it "until 2 pm or until further order" because,

in a sense, your client is back where it was when it

came before me on Thursday.

MR NICHOL:	Yes.
HIS HONOUR:	The order should make it clear that there is a

stay and no more than a stay. It is not sought to

reinstate the position, as it were.

MR NICX>L:	Yes.
HIS HONOUR:	And that is perhaps why something by way of a stay

or suspension until a fixed time may be more appropriate.

MR NICHOL: Yes, perhaps a stay of Your Honour's order or a

suspension of Your Honour's order discharging the order

be made until 2 pm.

HIS HONOUR:  Yes, thank you. Mr Richardson?

MR RICHARDSON:  Your Honour, I see difficulties, with respect,

in making a fresh injunctive order as to what the status

of it would be.

HIS HONOUR: So do I. Are they the sort of difficulties I have

just canvassed with Mr Nichol?

MR RICHARDSON: Indeed, yes, Your Honour. A suspension or a

stay, I confess I am not familiar with the concept of a

suspension of an order. I would have thought, with

respect, that the appropriate order would be to stay

your order discharging the order until 2 pm tomorrow

but I am in Your Honour's hands entirely.

HIS HONOUR: Yes, thank you.

MR RICHARDSON: There arises, I suppose, also, Your Honour, or

there does arise the costs of the applications that are

being made this afternoon.	I would ask for them or at
least ask that they be reserved.	My submission is that

Your Honour would order that the applicant pay the costs

Tl4 of this afternoon's application.

HIS HONOUR: Well now, by "this afternoon's application", you

are clearly talking about those events that have occurred

since delivery of my judgment?

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MR RICHARDSON:  Indeed, Your Honour, those events which occur

beyond the necessity to appear for the taking of reserve

judgment.

HIS HONOUR:	I suppose the advantage of that would be that iLn9thing happens between now and 2 pm then there is an
order which disposes of the matter - - -

MR RICHARDSON: Without the need for further costs, Your Honour,

indeed.

HIS HONOUR:	Yes.
MR RICHARDSON:	The matter has not been properly put before

the Court. It is a really ad hoc - - -

HIS HONOUR: Well, it is an oral - I suppose it is an oral

motion for relief of some sort.

MR RICHARDSON: It is, Your Honour, yes.

HIS HONOUR:  Yes, thank you. Miss Morris, do you want to say

anything about the appropriate course?

MISS MORRIS:  We have no further submissions although we would

seek the costs of the applications made this afternoon

as well.

HIS HONOUR: Yes, thank you. Mr Ephraums?

MR EPHRAUMS:  Your Honour, although I have no instructions, I

would agree with myfriend Mr Richardson's approach

in that it would be appropriate for the order foreshadowed

and I would also seek the costs of this afternoon's	in your reasons for judgment to be stayed until 2 pm
appearances and applications.

HIS HONOUR: Well, this afternoon's appearances, at least for

the purposes of taking judgment, no doubt, are covered by

an order for costs in regard to the earlier application.

sort of description, at least for the record, so that	I suppose I have to give Mr Nichol~s application some	the taxing officer would know what it is that is being
referred to but that perhaps is my problem.

MR EPHRAUMS: Yes, whatever that description may be I would

request that the costs of that application be met by

the applicant. So that - - -

HIS HONOUR:	I wonder if they really add anything to an order for costs of the application that I have dealt with. I
suppose you are here a few minutes longer than you might
otherwise have been.
MR EPHRAUMS:	Maybe an hour longer than in the normal event of

appearing to take a judgment.

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MR RICHARDSON:  Your Honour, they certainly add in our case

because we were specifically put on notice by the solicitors

for the applicant that a further application would be made

this afternoon. In theevent that Your Honour discharged

the injunction, that an application of some kind for a

stay would be made.

HIS HONOUR:  I suppose the application that has been made by

Mr Nichol is an application to grant injunctive relief

until Friday.

MR RICHARDSON:	That is the case, Your Honour.
HIS HONOUR:	That has been refused but he has obtained a stay,

or is about to obtain a stay of my order. But then, I
suppose the answer to that is that stay is not related to

the basis of his application for relief until Friday,

it arises from other considerations.

MR RICHARDSON:  It does, Your Honour, and it is an application

which we were specifically notified would be made and

causes me to appear.

HIS HONOUR:  Yes, thank you.

What I propose to do is this: first, I order that

the order made by Justice Wilson on 4 October 1988

be discharged. Secondly, I direct that the applicant

pay the respondents' costs and the intervener's costs

of the application for injunctive relief pending the	hearing of the application for special leave to appeal.
Thirdly, I direct that there be a stay of the first
order until 2 pm on 12 October 1988 and, fourthly,
I direct that the applicant pay the costs of the
respondents and of the intervener of the motion made
Friday, 14 October 1988. Now, does any counsel wish to orally today for a grant of injunctive relief until
be heard in regard to any of those orders?

_(Continued on page 163}

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MR RICH.aRDBON:  Your Honour, I am not sure whether it is

necessary; would Your Honour certify for counsel in

the costs order - order costs, if that is necessary in

this Court?

HIS HONOUR: Well, I take it there is no problem with that.

All parties were represented by senior and junior counsel.	The order for costs which was the order secondly made
will include a certificate for counsel.

MR RICHARDSON:  And further, I would ask that Your Honour

certify for counsel in order 4 in relation to the
parties for whom I appear, that is, the first and third

to seventh respondents?

HIS HONOUR:  Miss Morris?

MISS MORRIS: Nothing further, Your Honour.

HIS HONOUR:  Mr Ephraums?

MR EPHRAUMS: Nothing further, Your Honour.

HIS HONOUR:  The order fourthly made will include certification

for counsel on behalf of the first, third, fourth, fifth,

sixth and seventh respondents.

MR RICHARDSON:	May it please the Court.
HIS HONOUR:	Is there anything else that counsel wish me to

deal with? In that event we will adjourn.

AT 5.25 PM THE MATTER WAS ADJOUNED

UNTIL WEDNESDAY, 12 OCTOBER 1988

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