Residual Assco Group Ltd v Spalvins

[2000] HCATrans 267

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A5 of 2000

B e t w e e n -

RESIDUAL ASSCO GROUP LIMITED

Plaintiff

and

JANIS GUNARS SPALVINS

First Defendant

MICHAEL JAMES KENT

Second Defendant

NEIL LESLIE BRANFORD

Third Defendant

KENNETH WILLIAM RUSSELL

Fourth Defendant

MICHAEL STEVENSON GREGG

Fifth Defendant

DELOITTE HASKINS & SELLS

Sixth Defendant

DELOITTE ROSS TOHMATSU

Seventh Defendant

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 16 JUNE 2000, AT 9.29 AM

Copyright in the High Court of Australia

___________________

MR R.J. WHITINGTON, QC:   May it please the Court, I appear for the plaintiff.  (instructed by the Australian Securities & Investments Commission)

MR A.J. BESANKO, QC:   If your Honour pleases, I appear for the first, second and third defendants.  (instructed by Thomson Playford and instructed by Finlaysons)

MR J.P. DeRUVO:   If it please the Court, I appear for the fourth and fifth defendants.  (instructed by Phillips Fox)

MR I.A. NATHANIEL:   Your Honour, I appear for the sixth and seventh defendants.  (instructed by Mallesons Stephen Jaques)

MR K.L. KELLY:   I appear for the Attorney-General for the State of South Australia.  (instructed by the Crown Solicitor for the State of South Australia)

It might assist the Court if I indicated that we would not wish to make a submission as to costs unless the parties sought orders as to costs against the State or unless the Court was minded to make an order for costs against the State of South Australia.

HIS HONOUR:   Thank you, Mr Kelly. 

Gentlemen, I have some suggested orders that were faxed over.  Have you got those?

MR WHITINGTON:  Yes, your Honour.

MR BESANKO:   Yes, your Honour.

HIS HONOUR:   If I can indicate to you:  as to orders 1 to 4, I think the best way of dealing with it is for us to remit to the Supreme Court of South Australia rather than for us to do their immediate work for them.  So if I could just indicate the sort of order in place of 1, 2, 3 and 4 which would follow the order in Hughes a few months ago.  I will just read it to you. 

That part of the cause which was removed into this Court by order made 3 February 2000 be remitted back to the Supreme Court of South Australia for the making of orders to give effect to the answers to the questions in the case stated to the Full Court given by the order dated 25 May 2000 and in the reasons for judgment published 13 June 2000.

Then subject to what anyone wants to say to the contrary, I would make orders 5, 6, 7 and 8 in the draft. 

MR WHITINGTON:   That is satisfactory to the plaintiff, if your Honour pleases.

HIS HONOUR:   Yes, Mr Whitington.

MR BESANKO:   Your Honour, the only query we have is order No 5 relates to the costs of removal. Your Honour made an order on 3 February that they be costs in the cause. I do not know whether that needs some modification.

HIS HONOUR:   Yes, I see.  In 5 it will say, “Paragraph 2 of the orders made 3 February 2000 be varied so as to provide that the first to third defendants” et cetera.

MR BESANKO:   Thank you, your Honour.

MR WHITINGTON:   Thank you, your Honour.

HIS HONOUR:   Is there anything else, gentlemen?

MR WHITINGTON:   No, your Honour.

MR BESANKO:   No, thank you, your Honour.

HIS HONOUR:   I will just read it out then.  The orders will be:

1.That part of the cause which was removed into this Court by order made 3 February 2000 be remitted back to the Supreme Court of South Australia for the making of orders to give effect to the answers to the questions in the case stated to the Full Court given by the order dated 25 May 2000 and in the reasons for judgment published 13 June 2000.

2.Paragraph 2 of the orders made 3 February 2000 be varied so as to provide that the first to third defendants pay the plaintiff’s costs of and incidental to the removal application brought by the Attorney-General for the State of South Australia being Action No A48 of 1999 of this Court.

3.The first defendants’ removal application Action No A45 of 1999 of this Court brought by notice of motion dated 20 December 1999 be dismissed and the first defendants pay the plaintiff’s costs of and incidental to that application.

4.The second and third defendants’ removal application Action No A41 of 1999 of this Court brought by notice of motion dated 7 December 1999 be dismissed and the second and third defendants pay the plaintiff’s costs of and incidental to that application.

5.The plaintiff’s removal application Action No A42 of 1999 of this Court brought by notice of motion dated 7 December 1999 be dismissed.

MR WHITINGTON:   And a certificate at the end, your Honour.

HIS HONOUR:   Yes.  In addition, I certify that this was a proper matter for the attendance of counsel in chambers.

MR WHITINGTON:   Thank you, your Honour.

HIS HONOUR:   Thank you, gentlemen.  Court will adjourn until 10.30 am.

AT 9.35 AM THE MATTER WAS CONCLUDED