Pilmer & Ors v Duke Group Ltd & Ors (A46-99 ) CHH

[2000] HCATrans 344

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A46 of 1999

B e t w e e n -

ANGUS CLAYMORE PILMER

First Appellant

ALAN ROBERT CRAWFORD

Second Appellant

DOMENIC VINCENT MARTINO

Third Appellant

PETER JOHN MESSER

Fourth Appellant

PETER LAWSON MUNACHEN

Fifth Appellant

PAMELA ANNE ROBINSON and JOHN RICHARD LANGFORD as executors of the estate of GEOFFREY JAMES STOKES deceased

Sixth Appellants

ROBERT JOHN GRAY

Seventh Appellant

and

THE DUKE GROUP LIMITED (IN LIQUIDATION)

First Respondent

FRANCIS ANTHONY QUILTY and KEITH DANIEL SINGLETON

Second Respondents

HAROLD ABBOTT

Third Respondent

KEVIN CLARENCE SOMES  and SIR ERNEST LEE‑STEERE

Fourth Respondents

RONALD WILLIAM EDWARD ARNOLD and OTHERS (as per attached schedule)

Fifth Respondents

FRANCIS ANTHONY QUILTY and KEITH DANIEL SINGLETON

Sixth Respondents

HAROLD ABBOTT, KEVIN CLARENCE SOMES and SIR ERNEST LEE‑STEERE

Seventh Respondents

For directions

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY, 8 AUGUST 2000, AT 9.30 AM

Copyright in the High Court of Australia

MR A.J. BESANKO, QC:   May it please the Court, I appear with MS S. TRAIFOROS for the appellant.  (instructed by Phillips Fox)

MR R.J. WHITINGTON, QC:   May it please the your Honour, I appear with MR S.J. LIPMAN and MR S.J. DOYLE, for the respondent.  (instructed by Fisher Jeffries)

HIS HONOUR:  I hold a certificate from the Senior Registrar that she has notified Messrs Johnson Winter & Slattery, Mr Halse, Messrs Hume Taylor & Co and Messrs Phillips Fox of the listing of the matter for directions today, and that she informed me that should she not be advised to the contrary, she would inform the Court that there would be no appearance as previously notified.  The Senior Registrar informs me that she has not been informed any of the parties represented by those I have mentioned would appear at the directions hearing.

Ladies and gentlemen, the Court wishes to receive further argument on whether the grant of special leave in this matter should be enlarged.  In particular, it wishes to receive further argument on whether the appellants should have special leave to appeal on the issues which I will now identify and the text of which will be made available to counsel.

(a)  Did the Full Court err in finding that the appellants breached a fiduciary duty which they owed to the first respondent?

(b)  If no to (a), did the Full Court err in assessing the amount of equitable compensation to be allowed (before any reduction for contributing fault) as it did?

(c)  If no to (a), did the Full Court err in holding that the equitable compensation to be allowed to the first respondent is to be reduced on account of that respondent’s contributing fault?

The description of the issues I have just given has, as I say, been reduced to writing and will be made available to counsel.

The purpose of this hearing is to fix times for the filing and service of written submissions on those questions.  The submissions that are sought are not limited to whether leave should be enlarged.  The submissions that are filed should be submissions directed to that issue and to the underlying issues as on the hearing of an appeal.  It may then be that the Court will re‑enter the matter for further oral argument on the questions whether there should be any amplification of leave and on the underlying issues that are raised.  If the matter is re‑entered for further oral argument, counsel will be expected to be ready to argue the matters as on an appeal. 

As I say, the purpose of this mornings hearing is to fix times for the filing and service of these submissions.  The timetable which I would propose, so that the parties may have a specified target at which to shoot, is, first, that the appellants file and service on all other parties to the appeal written submissions on or before 4 pm, 4 September 2000.  That is a little less than a month away.  The respondents then to file and serve on all other parties to the appeal written submissions in answer on or before 4 pm, 25 September 2000.  That is three weeks after the appellants’ submissions. 

It will be seen that I propose that the submissions should be served on all other parties to the appeal, not simply those who are represented today.  Whether that is necessary or desirable may be a matter open to debate but prudence, I think, dictates that it occur in that way. 

But the immediate question then is whether counsel wish to be heard on those directions that I would propose and on whether some other or further directions should be given.  First, Mr Besanko?

MR BESANKO:   We do not wish to make a submission to your Honour.

HIS HONOUR:   Mr Whitington.

MR WHITINGTON:   No.  We understand what your Honour is putting and we can meet that.

HIS HONOUR:   Then if I give those directions, reserve the costs and certify for counsel, is there any other form of order or direction that counsel suggests that I would need to make?

MR BESANKO:   No, your Honour.

MR WHITINGTON:   No, your Honour.

HIS HONOUR:   The orders and directions will be as follows:

1.Direct that the appellants file and service on all other parties to the appeal written submission on or before 4 pm, 4 September 2000 on the issues which I have identified in the course of debate.

2.The respondents to file and serve on all other parties to the appeal written submissions in answer on or before 4 pm, 25 September 2000.

3.Costs will be reserved.

4.        I certify for the attendance of counsel.

The form of order that is actually taken out will, I think, need to recite more carefully and fully the issues to which the submissions are to be directed.

If there is nothing else, I will adjourn.

AT 9.36 AM THE MATTER WAS CONCLUDED