Raybos Australia Pty Limited & Anor v Tectran Corporation Pty Limited

[1988] HCATrans 3

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney Nos Sl30 of 1986 and S126 of 1987

B e t w e e n -

RAYBOS AUSTRALIA PTY LIMITED

and LESZEK RAJSKI

Applicants

and

TECTRAN CORPORATION PTY LIMITED

First Respondent

G.B. RICHARDSON

Second Respondent

M. YERUSHALMY

Third Respondent

M.F. BRINSDEN

Fourth Respondent

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G.J. COLE

Fifth Respondent

D.B. COWPER

Sixth Respondent

ARUNTA PROPERTIES (NSW) PTY LIMITED

Seventh Respondent

ARUNTA INVESTMENTS PTY LIMITED

Eighth Respondent

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B.P. JONES

Ninth Respondent

P.F. ESLER

Tenth Respondent

W.R.D. STEVENSON AND ORS

Eleventh Respondents

N.R. CARSON

Twelfth Respondent

R.A. STEPHENS AND ORS

Thirteenth Respondents

HIS HONOUR MR JUSTICE POWELL

Fourteenth Respondent

Application for a stay

WILSON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 10 FEBRUARY 1988, AT 9.33 AM

Copyright in the High Court of Australia

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MR B. MEAGHER:  May it please Your Honour, I appear for

all of the respondents in each application.

(instructed by Dawson Waldron)

HIS HONOUR:  Yes, Mr Meagher, thank you. Mr Meagher, the

applicants are not represented this morning.

MR MEAGHER:	Yes, I understood that, Your Honour.
HIS HONOUR:	At the request of Mr Rajski I have agreed to proceed in his absence with the application and have received for that purpose from him written
submissions.  I understand you have been given
a copy· of that.
MR MEAGHER:	Yes, I have, Your Honour.
HIS HONOUR:	Have you had an opportunity to read them?
MR MEAGHER:	Yes, I have, Your Honour.
HIS HONOUR:	So have I and perhaps I might invite you, to

make any submissions that you wish in response

to them.

MR MEAGHER:  Yes, thank you, Your Honour. Your Honour,

Mr Rajski, as I understand it, puts his application

for a stay on the basis that he says on page 2

of his written submissions that it is necessary

to preserve the subject-matter of the litigation.

He does not identify why that should be so. He

also says that he has substantial prospects on a special leave application for which the stay

is sought and he also says that it will not cause

any loss or prejudice to the respondents and so

the balance of convenience lies in favour of making

the order.

Going to the first point in relation to whether

there should be a stay or not, the first aspect
that I am asked to indicate is that in relation
to the respondents'nine to eleven there is no point

in the appeai; or the special leave application

or the notice of appeal that has been filed in

that application relating to the way they became

involved. The aspect of the matter that there

would be a complaint about in relation to them

is whether the original objection to the taxation

by the deputy registrar of the costs of the ninth to the eleventh respondents by the applicants was

filed within time.

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MR MEAGHER (continuing):  I do not know whether Your Honour has

had an opportunity to go back through all of the things

that have happened in the proceedings since the

initial proceedings first became before Your Honour

on 3 October, but in case Your Honour has not had

that opportunity perhaps I can just - - -

HIS HONOUR:  Yes, I can follow what you are saying. As I

recall it the objection to the bill of costs in

respect of a third set was not made until some

months out of time.

MR MEAGHER:	That is right, yes.
HIS HONOUR:	No extension had been sought and the taxing

officer declined to deal with them and that matter

has remained at that point ever since.

MR MEAGHER:  Yes. And in so far as the ninth to eleventh

respondents are made respondents to the special

leave application there is, in effect, however,_nothing in

the special leave application itself or the affidavit

in support or the notice of appeal that has been

filed.that deals with the issue that affects them.
because the judgment of Mr Justice Toohey did not -
well, that argument was not raised there. The only
point that affected·them was the point in relation
to been out of time so that the only certificates
of taxation that effectively became the subject

of attack are those of the other respondents, that

is, one to eight and twelve to thirteen.

HIS HONOUR:	Is there any appeal or any action pending by the applicants with respect to that third bill of costs?
MR MEAGHER:	On my instructions there is not, no, Your Honour.
HIS HONOUR:	It is something of a problem though, is it not,

if one distinguishes for the purposes of the application

for a stay,which is what we are dealing with at

the moment,between certain of the respondents and
the others and having regard to the fact that the

application - for special leave is in order for a

hearing as soon as time can be secured for it so that

the delay is not likely to be very great. I am not

aware of any considerations that really would disturb

the balance of convenience, being in simply stalling
the execution until that application has been heard

because it certainly bears on a substantial part

of the subject-matter of the - - -

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MR MEAGHER:  Yes, but in so far as I am representing the ninth

to the eleventh respondents, Your Honour, I suppose

the point I make is that the prospects - in so

far as Your Honour might consider that as a matter-

the prospects of the special leave application

in relating to them is nil because there is nothing -

HIS HONOUR: 

Yes, quite.

MR MEAGHER: 

But dealing with the rest of the respondents,

there are two applications, in effect, one of them
in the initial proceedings that first came before

Your Honour in matter No 130 of 1986 and then

there is also a stay sought in the new matter.

In our submission, the only stay that need be considered is the one in the new matter because

the old matter is one that has since been discontinued
in any event. It is one that has been discontinued

by the filing of a notice of discontinuance.

HIS HONOUR:  I have two different forms. They are both headed -

yes, I am with you. There are two applications

this morning:  one numbered Sl30 of 1986 and the

other Sl26 of 1987. Subject to what you say, I

had thought it more appropriate to proceed with

the application in Sl30 of 1986 because it was

in that proceeding that the order for costs was

made, which is the subject of an application now

to stay the execution of that order. If I deal
with the application in Sl30 of 1986 the application

in 126 of 1987 will simply lapse.

MR MEAGHER:  Yes. The only point I was wishing to make about

that, Your Honour - what Your Honour has to deal

with, one of the parts of the application in 130 of

1986, because it deals with correcting an order

that Your Honour made. But it seemed to myself,

Your Honour, and my instructing solicitor, that

perhaps the application for a stay would be one that

would be brought up in the new application because

the original matter, 130 of 1986, was discontinued -and

I have just picked up the date - it was discontinued
on 18 May 1987.	I suppose it does not really matter

in the long run which way it is dealt with so long

as it is dealt with.

(Continued on page 6)

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HIS HONOUR:	The application for special leave was discontinued?
MR MEAGHER:	The original, yes, the original application.
HIS HONOUR:	But my order refusing the stay with costs is

very much -alive and it was made in that

proceeding and that is why I am inclined to think

that it is in that proceeding that I ought to deal

with whether or not the execution of that order
for costs should be stayed? But perhaps it does not

matter.

MR MEAGHER:	No, I do not think it does, Your Honour.
HIS HONOUR:	Whatever order I make could be applied to both

matters?

MR MEAGHER:  Your Honour, however I am instructed to oppose

both applications. As to the point of whether the

subject-matter of the litigation has been destroyed,

it is obviously not a case such as where patents
may continued to be infringed or liens may be

destroyed or people may be deported or things of

that kind, it is just a matter of whether someone

pays some money over or not, and the amounts of

money are certificates of taxation, I think one is in the sum of $2000-odd and the other is the sum of $1000-odd. It does not fall within

the principles, in my respectful submission

in which the subject-matter of the litigation has

been destroyed at all. And that is the first step

that has to be satisfied in my submission in

relation to this sort of application, that it has

to be something that is of extraordinary nature

and I think Your Honour referred to that in your

original judgment back in October 1986. And really

there is nothing extraordinary about having to

pay some costs during the course of proceedings that

have since been discontinued.

Your Honour made the point, in Your Honour's

original decision that these proceedings seem to

be generating a momentum of their own towards
greater complexity and they ought in the interests

of justice to proceed to determination and finality.

That is the prejudice that is being suffered by the

respondents because it is still, as we respectfully

agree, the proper comment to make then, and now that

must be even more so.

(Continued on page 7)

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MR MEAGHER (continuing):  We are now dealing with an application

for special leave arising out of an application for
special leave. The proceedings, since Your Honour

last dealt with them, have taken numerous courses.

There was an application initially made for a stay or

an adjournment of the taxation of costs before

Justice Gaudron on 14 April which was dismissed; the

bill was then taxed; there was then notices to

review the taxation; then there was further reviews

to His Honour Mr Justice Toohey. Finally, we come

now to another special leave application in relation
to this decision of Mr Justice Toohey, which is a
decision itself on a matter regarding the discretion

of a taxing officer in allowing or not allowing costs

on a taxation.

In relation to prospects on a special leave

application, I know the authorities warn us against

prejudging a special leave application, but in my

respectful submission, one would think that the

prospects would be slight indeed, if at all, and that

there is not really any great purpose in putting off

the evil day yet again, albeit, as Your Honour rightly

pointed out, it may be that the proceedings will come

on without much delay but to some extent - although

the Court obviously has already made directions about

things being done on time and matters of that kind -

that to some extent that still is at large until it

happens and to some extent it may be affected by

the conduct of the applicant.

So, Your Honour, in sunnnary what we submit is

there is no subject-matter of the proceedings being destroyed; there are no extraordinary circumstances which merit the Court intervening.

(Continued on page 8)

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MR MEAGHER (continuing):  The prospects of the appeal or

of the special leave application are slight indeed
and there is prejudice to the respondents in the
furtherance, yet again, of proceedings preventing

the respondents from obtaining what they are

entitled to, that is the payment of their costs.

That is all I wish to put in relation to the stay

application, Your Honour.

The second application that Mr Rajski makes is

in relation to changing Your Honour's original order

about the order being against both applicants.

The transcript - I do not know whether Your Honour

has had access to the transcript before Your Honour

in the proceedings that came on before you.

HIS HONOUR: I do not think I really need hear you on this, Mr Meagher, because if I can just find it - I am

having difficulty finding what I need. The original

application upon which I made the order was the

sun:nnons issued on 23 September 1986.

MR MEAGHER:  Yes.

HIS HONOUR: It is clearly a sum:nons on the hearing of an

application on the part of the company and the

second applicant.

MR MEAGHER:  Yes, and I think that it was supported by an

affidavit, Your Honour, of Mr Rajski in which he says

that he is one of the applicants, is a director of

the other and is authorized to make that affidavit

on its behalf and goes on to say the applicants,

that is both of them, seek special leave.

HIS HONOUR: Yes. So I do not want to hear you any further on

that. It seems to me to be quite plain that that

part of the application now before me must fail.

MR MEAGHER:  Yes. Is there anything else, Your Honour, in

relation to the first aspect of the matter that

I - - -

HIS HONOUR: I do not think so, Mr Meagher. I think you have

dealt with it very comprehensively.

MR MEAGHER:  Your Honour, I am reminded that I should ask,

should Your Honour find in our favour, to ask for

costs and if, bearing in mind what has happened in

the past - this is a chambers application - to ask

that Your Honour certify for counsel.

HIS HONOUR: I thought you might do that.

MR MEAGHER:  Thank you, Your Honour.

HIS HONOUR: There is one question perhaps I should put to you.

One must assume that an execution of the order may

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involve an execution against assets. You spoke of it simply as being requiring the payment of money.

It may not be as simple as that, is that right?

MR MEAGHER:	Yes, certainly.
HIS HONOUR:	Thank you.

As Mr Meagher has reminded me, when this matter

came before me in October 1986 I remarked that the

ancillary proceedings seemed to be developing a

momentum of their own. That remark, seemingly

justified at that time, has been even more justified

by the subsequent developments.

I am now dealing with the application in

No S130 of 1986. That is an application by the

company and Mr Rajski for a number of orders. The

first clause seeks a declaration that an order of

3 October 1986 in relation to costs is against the

second applicant only.	I have no hesitation in
refusing to make that declaration.	The initiating

document that led to that order was a summons

which clearly refers to the hearing of an application

by both the applicants, the company and Mr Raj ski,

and it is clear beyond argument that the resulting

order when that application was refused - the

resulting order for costs - was against both the

applicants.

The second clause of the application is that

the order entered by the respondents be varied by

deleting certain words. That application is refused

because it simply follows the fate of the first.

The third clause is that the certificate of taxation be set aside and quashed. That clearly is not open to me to entertain at this stage having

regard to the proceedings and is refused.

The fourth clause is that the certification

application for special leave to appeal from the	of taxation be stayed pending the hearing of the	judgment and order of His Honour Mr Justice Toohey.
And in the alternative to both three and four there is clause five, namely, that the execution of the certificate of taxation be stayed pending the hearing of the application for special leave to appeal from
the judgment and order of His Honour Justice Toohey
This is the substantial matter that requires my
attention. I recognise the caution with which a
stay should be granted and it is unnecessary to repeat the observations that have been made in that regard by successive members of the Court over a
substantial period of time.

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Nevertheless, there are considerations here

that may make it appropriate to make such an order.

The subject-matter of the application for special leave is an order of Justice Toohey in respect of

an order for costs, the execution of which is now

sought to be stayed.

I am, of course, unable to predict the outcome

of the application for special leave and I must deal
with the application for a stay on the basis that
the application may succeed. It may not be
inappropriate for me to remark that there may be

a question as to whether there is an appeal as of right.

But it is unnecessary to say more than that I should

deal with the application for a stay in the context

of a pending application for special leave to appeal

which may succeed and that I must have regard to the

situation that would then obtain.

If the order for costs were to proceed to

execution and the application for special leave is
subsequently granted and the appeal allowed, the
execution would, at least as to part, require to
be reversed. It would certainly lead to a
readjustment of the order for costs. It seems to

me that that poses considerable prejudice to the

applicants and generally to an unsatisfactory
situation. Unless there is a countervailing

prejudice to the respondents in my granting the

application, I think the balance of convenience clearly

would favour the grant.

So far as the prejudice to the respondents is

concerned, they have been held out of the costs to

which they are provisionally entitled for a long

time. But the likely delay, if a stay were granted,

is unlikely to be a lengthy one. There is no

suggestion that any available assets are under threat

of dispersal or that a stay would render the

execution nugatory. In all the circumstances I am

of the opinion that a stay should be granted. far as the respondents numbered nine to eleven are So	concerned, it is true that there is no challenge
currently pending against the costs order in respect
of those respondents and I have some hesitation in
extending the stay to cover that bill of costs.

On the other hand, to do otherwise would lead

merely to the duplication of the costs of execution

and thereby cause a degree of complexity. I conclude

that the appropriate order is that I should grant a

stay of execution of the certification of taxation pending the hearing of the application for special leave to appeal from the judgment and order of

Justice Toohey and that that stay should operate with

respect to all the bills of cost arising out of my

order of 3 October 1986.

There will be an order in those terms. I make no order

as to the ~osts of this application.

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MR MEAGHER:  Does Your Honour wish to hear me about that?

HIS HONOUR: If you wish.

MR MEAGHER:  Your Honour, I would submit that the order that

Your Honour has made is an indulgence granted to

the applicant that he comes to seek and that in

that situation, where someone comes to seek an

indulgence, the practice is often that the person
seeking the indulgence pays for it in the form

of costs in any event. Also he has been unsuccessful

in relation to a proportion of the claim as well

and I would seek an order for costs in favour of

the respondents, Your Honour.

HIS HONOUR:  Yes. I recognize the force of what you say,

Mr Meagher, but I think the question of the stay

was clearly the issue of substance in the proceeding

and having been opposed, and opposed unsuccessfully,

it does sound rather odd if I was to make an order

of costs in favour of the respondents. So there

there be no doubt as to what I am doing, I think

the order should expressly say there is no order

as to costs.

MR MEAGHER:	May it please the Court.
HIS HONOUR:	I think those orders cover the field - the order

with respect to the stay and the question of costs

covers the application made in 126 of 1987 and

it is simply sufficient if the orders that I have

made apply to that application as well. That is

the most convenient way to deal with it.

MR MEAGHER:  May it please Your Honour.

AT 10.00 AM THE MATTER WAS ADJOURNED SINE DIE

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