Preston Erection Pty Limited v Sandman Holdings Pty Limited

[1992] HCATrans 55

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S78 of 1991

B e t w e e n -

PRESTON ERECTION PTY LIMITED

Applicant

and

SANDMAN HOLDINGS PTY LIMITED

Respondent

Application for special leave

to appeal

BRENNAN J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

Preston 1 14/2/92

AT SYDNEY ON FRIDAY, 14 FEBRUARY 1992, AT 5.22 PM

Copyright in the High Court of Australia

MR G.T.W. MILLER, QC:  May it please Your Honours, I appear

with my learned, MR K.P. SMARK, for the applicant.

(instructed by M.D. Nikolaidis & Co)

MR D.R. PRITCHARD: If the Court pleases, I appear for the

respondent. (instructed by Baker & McKenzie)

MR MILLER:  Your Honours, may we hand to Your Honours four

copies of our outline of submissions, or would

three only be necessary.

BRENNAN J: This second question, relating to

disqualification - - -

MR MILLER:  It was the matter I was going to take first,

Your Honour.

BRENNAN J:	Was it raised before the Court of Appeal?
MR MILLER:	Yes, it was, Your Honour. Can we hand to

Your Honours a copy of - it was not put in the application book - the transcript of the hearing before the - - -

TOOHEY J:  It is not part of the draft notice of appeal,

Mr Miller, is it?

MR MILLER: There was an additional affidavit seeking to

raise it as grounds of appeal, an affidavit of

Mr Nikolaidis sworn 10 February 1992.	Do
Your Honours have that?

BRENNAN J: Yes. But I must say it is - this matter goes

into the end of the list; it is late in the day; we

have had to sit with only two members of this Court

to deal with a case which concerns the propriety of

the action of a member of the Court of Appeal.	It
is very unsatisfactory to have it raised at this
hour of the day.	It is not in the notice of

appeal. This is something that should have

been ..... some time past.

MR MILLER:  It was in the draft notice of appeal,

Your Honour. It is paragraph 2(d) and that is annexed to Mr Leon Nikolaidis' affidavit that I have just referred to.

TOOHEY J:  You mean the subsequent draft notice of appeal?

MR MILLER: Yes, Your Honour.

TOOHEY J: It is not in the application book itself?

MR MILLER:	No, Your Honour.	It was filed on 11 February.
Preston	2	14/2/92

BRENNAN J:  Mr Pritchard, what have you to say about the

amendment of the draft notice of appeal?

MR PRITCHARD:  Your Honour, I was notified orally last

Sunday and my instructing solicitors received an

unsworn copy yesterday of the affidavit. The

application was made before the Court of Appeal and

I am ready to meet it, the issue of

disqualification. I appreciate the difficulty the

Court has and if it needs to go over, I have no

objection to that.

BRENNAN J: For some reason or other, I have never seen this

affidavit and it is quite unsatisfactory for two

members of this Court only to sit on an application

of this kind.

MR MILLER:  As we would see it, it is probably the strongest

point in the application, Your Honour.

TOOHEY J: Is it the subject of a separate judgment?

MR MILLER:  No, Your Honour. As Your Honour will see from

the transcript, it was raised on the morning - - -

TOOHEY J:  I am sorry, the transcript has just been handed

to me.

MR MILLER: Yes, Your Honour, and it is succinctly dealt

with at page 1 up to page 2 point 3.

BRENNAN J:  Would you like to address the other part of your

argument?

MR MILLER: Certainly, Your Honour. That related to the

contract point and the discrete point there,

Your Honour, is whether in our submission - - -

BRENNAN J:  Mr Miller, are you saying that the

disqualification point is really your primary

argument?

MR MILLER: It is, Your Honour, yes.

BRENNAN J: Then I think there is no course open to us, in

that circumstance, other than to adjourn it to the

next sittings.

MR MILLER: If Your Honours please.

BRENNAN J:	Do you have anything to say, Mr Pritchard?
MR PRITCHARD:	I would apply for costs, Your Honour, by

reason of the late amendment to the nature of the

claim being made against my client.

BRENNAN J:  What do you say to that, Mr Miller?

Preston	3	14/2/92
MR MILLER:	Your Honour, we would oppose that.	My learned

friend has already indicated he is prepared to meet

the argument today, and we filed in accordance with

the rules.

BRENNAN J:  I think the appropriate order will be for costs

to be reserved. The matter will be adjourned and

it will stand over to take its place in the

subsequent list of special leave applications.

AT 5.28 PM THE MATTER WAS ADJOURNED SINE DIE

Preston 14/2/92