Players Pty Ltd v Clone Pty Ltd & Ors

[2006] HCATrans 591

[2006] HCATrans 591

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A16 of 2006

B e t w e e n -

PLAYERS PTY LTD

Applicant

and

CLONE PTY LTD

First Respondent

GREGORY MICHAEL GRIFFIN

Second Respondent

DARREN JOHN CAHILL

Third Respondent

CHRISTOPHER STEPHEN McDERMOTT

Fourth Respondent

Summons

HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO SYDNEY

ON MONDAY, 30 OCTOBER 2006, AT 10.59 AM

Copyright in the High Court of Australia

__________________

MR A.L. DAL CIN:   May it please the Court, I appear for the first respondent who is moving the Court on the summons this morning.  (instructed by Grope Hamilton)

MR K.G. NICHOLSON, QC:   May it please the Court, I appear for the applicant in the matter and the respondent to the summons.  (instructed by Griffin Hilditch)

HIS HONOUR:   I have read the summons filed on 25 October 2006 and I have read Mark Eric Hamilton’s affidavit filed on that day and the exhibits to it and I have read Part 4 of the first respondent’s written submissions on the appeal and paragraphs 9 and 10 of the applicant’s draft notice of appeal.  Is there any objection to Mr Hamilton’s affidavit?

MR NICHOLSON:   Just three minor objections, your Honour.  If your Honour would not mind taking the affidavit up, paragraph 11, the second sentence, it is our submission that there is no appropriate foundation laid for that expression of belief. 

HIS HONOUR:   Is that pressed by the first respondent?

MR DAL CIN:   No, your Honour.

HIS HONOUR:   Very well.  The second objection, Mr Nicholson?

MR NICHOLSON:   The second objection, your Honour, is paragraph 14, the second line, the word “only”.  Again, there is no foundation put to enable the assertion put in that way.

HIS HONOUR:   Is that pressed on behalf of the first respondent?

MR DAL CIN:   No, your Honour.

HIS HONOUR:   Very well.  Finally, Mr Nicholson?

MR NICHOLSON:   Finally, your Honour, paragraph 22.  The objection really is to the whole of the paragraph as it is presently phrased.  The essence of the problem is the use of the present tense in the first line, “the Applicant is liable to refund the sum”.  There is no evidence been put as to whether or not that has in fact occurred.  I am not in a position to give evidence from the Bar table, your Honour, but we object to that paragraph in its present form.  We would not object if it had read, “the Applicant was at that time liable to repay”.

HIS HONOUR:   Mr Dal Cin, if it were read, “the Applicant was at that time liable”, et cetera, would you be content with that resolution of this objection?

MR DAL CIN:   Your Honour, I wonder whether there is a further alternative.  The deponent at paragraph 22 is deposing to a matter that is a reflection of the terms of the agreement.

HIS HONOUR:   It is not usually something that deponents are allowed to say.

MR DAL CIN:   Thank you, your Honour.  So the resolution that my learned friend suggests and your Honour asks me about is acceptable to us.

HIS HONOUR:   Very well.  Paragraph 22 will be admitted on the basis that it is read in the manner suggested by Mr Nicholson.  That affidavit with the two parts not read and paragraph 22 as amended will be received together with the exhibits marked as indicated in the affidavit.  Does that complete the evidence?

MR DAL CIN:   Yes, your Honour, thank you.

HIS HONOUR:   Mr Dal Cin, I do not need to hear you in relation to your application to file three pages of further submissions but I do need to hear you on whether or not paragraphs 9 and 10 of the draft notice of appeal should be struck out.  That is not a procedure I have ever encountered before.  Whether or not paragraphs 9 and 10 can be relied on in the event that special leave is granted is a matter for the Justices who hear the special leave application on 10 November.  They will decide whether the appeal should proceed on every ground set out or on a smaller number of grounds or on some additional ground that seems meet to them.  Do you follow?

MR DAL CIN:   May it please the Court.  In my submission, may I address your Honour’s proposition in respect of striking out and the procedure we seek the Court to adopt.  I invite the Court to take up the Rules of this Court and invite the Court to rule 2.03.2.

HIS HONOUR:   I do not actually have them at the moment, but you proceed.

MR DAL CIN:   The essence of the submission and the procedure we ask the Court ‑ ‑ ‑

HIS HONOUR:   Now I have them.

MR DAL CIN:   The essence of the procedure we ask the Court to adopt is founded upon the power of the Court to set aside a step taken in the proceeding if there is a failure to comply with the Rules or:

(b)make such other order whether allowing amendment or otherwise as is appropriate.

Our application to strike out is perhaps another way of seeking an amendment of the draft notice by the deletion of paragraphs 8 and 9.

HIS HONOUR:   Paragraphs 9 and 10, I think.

MR DAL CIN:   I am sorry, your Honour, in the version provided to me it is 8 and 9.

HIS HONOUR:   I am wrong, you are right.

MR DAL CIN:   Thank you.  The essence of the complaint is that it is our case that the Rules require, albeit implicitly, that the draft notice of appeal raise grounds of appeal relating to the issues in respect of which special leave is sought and that insofar as the document goes beyond the grounds of appeal in respect of which special leave to appeal is sought, a draft notice does not comply with the Rules. 

In those circumstances, in my submission, it is clear on the face of the application for special leave that special leave is not sought in respect of paragraphs 8 and 9.  The parties, and in particular the first respondent, is entitled to proceed with the hearing on the special leave application without a risk that by a side wind the applicant will seek to obtain special leave in respect of paragraphs 8 and 9.  May I develop that submission by taking the Court to ‑ ‑ ‑

HIS HONOUR:   Can I just interrupt.  This point could be made on 10 November in front of the two or three Justices who are hearing the special leave application.  They will be fully equipped and fully in charge of

the question whether the arguments advanced in the special leave application support all the grounds in the draft notice of appeal or not.  It is inappropriate for a single Judge to decide those things when they are primarily committed for the consideration of the Full Court.

MR DAL CIN:   Whilst I accept that that is a course that would be appropriate, in my submission, I will endeavour to persuade the Court that an alternative and also appropriate course would be to take the step we seek to clarify the issues that will be before the Court on the special leave hearing.  The reason we seek to do that and the prejudice to my client if it is not clarified is that my client would find itself having to deal with this issue in the very limited time that is available to the parties upon a special leave application hearing and that, given that special leave is not sought in respect of paragraphs 8 and 9, my client should be spared the prejudice of having to address paragraphs 8 and 9 and be prepared to deal with them and then deal with them orally in submissions.

HIS HONOUR:   Have you dealt with them in your written submissions?

MR DAL CIN:   We have not.

HIS HONOUR:   Well, you should have.

MR DAL CIN:   Thank you, your Honour.  Equally, the applicant has not dealt with them, neither in the grounds of special leave nor in their written submission.

HIS HONOUR:   These are points that can be made on 10 November.  Twenty minutes can be quite a long time.

MR DAL CIN:   Thank you, your Honour.  I have put the matters that I wish the Court to consider in respect of that part of the application.

HIS HONOUR:   Thank you.  Mr Nicholson, why should not the first respondent have leave to file three further pages in written submissions?

MR NICHOLSON:   Your Honour, the only submission I can put on that is that it is ultimately a matter for your Honour to grant leave whatever my client’s attitude may be.  The only submission I can put, your Honour, is that it could and should have been done in their initial submissions.  We would have had an opportunity to deal with it in our reply.  We now have to seek a further opportunity to reply to those submissions in the limited time available for this matter which is listed to be heard on Friday week.

Apart from the matter of timetabling any leave your Honour might grant, there is nothing of substance that I can put as to why they should not

have leave to file further submissions.  We only say it should have been done the first time round.  They were on notice of the costs issue.  They raised the costs issue but chose not to make any submissions about it at that time.  I am instructed not to consent to it, your Honour.

HIS HONOUR:   Yes, very well, thank you.

MR NICHOLSON:   Does your Honour wish to hear me on the other aspect of the application?

HIS HONOUR:   No.  I will be not making any order in relation to paragraphs 8 and 9 of the draft notice of appeal.

MR NICHOLSON:   May it please your Honour.

HIS HONOUR:   This is an application which relates to an application for special leave to appeal listed for hearing on 10 November 2006.  The judgment against which the applicant wishes to appeal was a decision of the Full Court of the Supreme Court of South Australia relating to the dealings of the first respondent with the applicant in relation to certain premises in Adelaide.  In particular, the Full Court dismissed an appeal against orders of Justice Vanstone denying the applicant’s right to hold certain hotel and gaming machine licences.

The first respondent has filed a summons dated 25 October 2006 seeking determination before 10 November 2006 of two questions.  The first is whether the first respondent should have leave to file a supplementary summary of argument in relation to the special costs order sought by the first respondent in Part 4 of its summary of argument.  That summary of argument reads as follows:

56.      The first respondent seeks an order for its costs against the applicant and against the second to fourth respondents, jointly and severally.

57.      The applicant and the second to fourth respondents were ordered by the Full Court to pay 80 per cent of the first respondent’s costs of the appeal.  Paragraph 2 of the orders sought by the proposed draft notice of appeal seeks to set aside that order.

58.      The second to fourth respondents seek to gain from the proposed appeal both through their interest [in] the applicant and in respect of costs orders.

Underlying those propositions is a fear that if the applicant’s special leave application is dismissed with costs, the applicant will be unable to pay the costs and the second to fourth respondents who stand to benefit from the successful appeal should do so.  The second to fourth respondents have filed appearances in which they submit to any order the Court may make save as to costs.

No explanation has been offered in the affidavit of the solicitor for the first respondent as to why whatever it wishes to say about the special costs order was not said in the first respondent’s summary of argument already filed.  On the other hand, the first respondent’s application is to file only a further three pages of argument and thus is a relatively innocuous one. 

The first respondent’s present application was foreshadowed in a letter from its solicitors to the applicant’s solicitors on 22 September 2006 but the reply of 9 October 2006 did not consent to that application or even mention it.  In all the circumstances it is appropriate to make the orders sought but it will be necessary to serve the submissions on the second to the fourth respondents since they affect their interests.  It will also be necessary for the applicant to have leave to respond to those submissions.  Counsel drew attention to the shortness of time involved.  The time is short but that is an inevitable difficulty in all the circumstances.

The second question raised by the first respondent’s summons is whether an order should be made striking out paragraphs 8 and 9 of the draft notice of appeal.  Those paragraphs read as follows:

8.        The Full Court erred in failing to find that the letter of 30 October 2003 (P5/119) comprised a consent by the respondent to Clone to the removal of the licences on the conditions as set out therein.

9.        In the alternative, the Full Court erred in failing to find that the letter dated 31 October 2003 (P5/121) had the effect of concluding a binding agreement between the appellant and the respondent Clone pursuant to which Clone consented to the removal of the licences and Players promised to perform certain conditions.

The solicitors for the first respondent have asked the solicitors for the applicant to remove these paragraphs but they have refused to do so.  The first respondent contends that those paragraphs fall outside the scope of the special leave application.  It is contended that because of that there has been a failure to comply with the Rules in that the orders sought go beyond the argument in the special leave application and that, therefore, pursuant to rule 2.03.2 a Justice may set aside any step taken in the proceeding or make any order allowing an amendment. 

I do not propose to decide the question whether paragraphs 8 and 9 of the draft notice of appeal go beyond the special leave application.  Whether or not they go beyond it, it seems to me that the alleged breach is not of a type which would justify departure from the ordinary procedure of the Court.  It is true that a draft notice of appeal is an important document in special leave applications.  If leave is granted, the appeal will ordinarily be limited to the grounds set out.  Leave may be granted on narrower grounds but the question which grounds an appeal may proceed on is a question for the two or three Justices who consider the special leave application, not for a single Justice before that application has been heard.

Leaving aside exceptional cases, if the position were otherwise, the time of single Justices would be taken up dealing with matters that are properly the province of Full Courts and interfering with that province.  The spectre of appeals by leave against the decisions of single Judges on that subject matter would arise.  No encouragement should be given to the course which the first respondent urges on the Court.

Accordingly, I order:

1.That the first respondent have leave to file and serve on all other parties on or before 3 November 2006 a supplementary summary of argument not to exceed three pages in relation to the special costs order sought by the first respondent in Part 4 of its summary of argument;

2.That the applicant have leave to reply to the first respondent’s supplementary summary of argument on or before 7 November 2006. 

On the subject of costs, I was proposing to make no order as to costs.  Does anyone object to that course?

MR NICHOLSON:   Your Honour, I would seek costs of this application.  The second part of the application was unnecessary and failed.  The first part of the application was necessary in any event.  My learned friend is seeking an indulgence to extend the timetable to file additional submissions which could have been and should have been filed in the original round.

HIS HONOUR:   Yes, but you could have and should have either consented to the course proposed or explained why it should not be adopted.  If you had consented, the matter could have been dealt with by consent orders in the Registry.  If you had opposed for some powerful reason, the first respondent might have desisted from the course it chose to take.

MR NICHOLSON:   Your Honour, a timetable still had to have been set up for this, given the timeframe available.

HIS HONOUR:   That could have been done by consent through the Registry.

MR NICHOLSON:   You have heard my submissions, your Honour.

HIS HONOUR:   Yes, very well.  Mr Dal Cin, do you have anything to say against the proposition that there should be no order as to costs?

MR DAL CIN:   In my submission, I would invite an order that the costs follow the event of the special leave application so that they fall within effectively costs in the cause of the proceeding before the Court.  I adopt the matters your Honour has put to my learned friend but simply say that in all of the circumstances the successful party in the special leave application should have the costs as they follow.  There is nothing further I wish to put on that.

HIS HONOUR:   Thank you.  On the question of costs, the success of the applicant has been mixed.  In my opinion the applicant ought to have consented to the first order sought by the first respondent or at least have explained why it opposed that order.  Had either consent or an explanation been forthcoming, the present hearing may not have been necessary.  On the other hand, the first respondent has failed to obtain the second order sought in the summons.  In the circumstances, although the first respondent has been seeking an indulgence, I propose to make no order as to costs. 

Is there anything further?  The Court will now adjourn.

AT 11.22 AM THE MATTER WAS CONCLUDED