Rich & Anor v Australian Securities and Investments Commission

[2005] HCATrans 387

[2005] HCATrans 387

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S261 of 2005

B e t w e e n -

JOHN DAVID RICH AND MARK ALAN SILBERMANN

Applicants

and

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Respondent

Summons for expedition

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 JUNE 2005, AT 2.19 PM

Copyright in the High Court of Australia

MR D.L. WILLIAMS, SC:   May it please the Court, I appear with my learned friend, MR S.A. GOODMAN, for the applicants.  (instructed by Joanne Kelly)

MR R.B.S. MACFARLAN, QC:   If the Court pleases, I appear with my learned friend, MR J.P.A. DURACK, SC, for the respondent.  (instructed by Australian Securities and Investments Commission)

HIS HONOUR:   I have a summons filed 3 June 2005 seeking an order for expedition of the special leave application against the Court of Appeal’s decision.  Is that application for expedition opposed?

MR MACFARLAN:   No, your Honour.

HIS HONOUR:   I have looked at the papers.  The affidavit of Ms Kelly refers to some projected mediation.

MR WILLIAMS:   That occurred yesterday.  It was unsuccessful and that process is completed.

HIS HONOUR:   It has come to a stop, has it?

MR WILLIAMS:   Yes.

HIS HONOUR:   Come to an end.

MR WILLIAMS:   An end.

HIS HONOUR: All right. That was pursued under section 110K of the Supreme Court Act, was it?

MR WILLIAMS:   Yes, over our objection, but it was ordered nonetheless.

HIS HONOUR:   Does that apply in federal jurisdiction?  It seems to empower the State court to compel people against their will to mediate federal causes of action.

MR WILLIAMS:   Yes.

HIS HONOUR:   I have discussed the position with the Chief Justice and it would be possible, if, as I think should be done, an order were made on the summons for expedition, for the matter to be placed in the list for hearing in Sydney on Friday the 17^th, but that will require some activity from the solicitors.

MR WILLIAMS:   That has already occurred, your Honour, and a draft index has already been provided to the Registrar.  We believe that we would be in a position to have application books ready on Tuesday.

HIS HONOUR:   Yes, that is what I had in mind.  That would be Tuesday the 14^th, would it not?

MR WILLIAMS:   Yes, your Honour.

HIS HONOUR:   There does not seem to be any order of Justice Austin.  What was the foundation of the appeal to the Court of Appeal?

MR WILLIAMS:   We were not the appellants but I understand it to be the ruling that occurred at the end of the judgment.

HIS HONOUR:   Anyhow, the Court of Appeal dealt with it, so it is not my task to investigate their record, I suppose.  Am I right in thinking that there was no order entered of Justice Austin implementing that rule against which leave was granted and appeal was heard?

MR WILLIAMS:   We think that is probably right.  The order that the Court of Appeal made in order 4 was an order setting aside Austin J’s ruling that the Carter Report is inadmissible or ought to be excluded.

HIS HONOUR:   Yes, I noticed that.  Do the materials as they presently are before this Court include the notice of appeal to the Court of Appeal?  I think they do.  Let me just check.

MR WILLIAMS:   Yes, they do, your Honour.  All the submissions that are required to be ‑ ‑ ‑

HIS HONOUR:   And the Court of Appeal order has been entered on 25 May, and that is in the file.

MR WILLIAMS:   Yes.

HIS HONOUR:   The submissions in this Court both by the applicant, respondent and applicant in reply - they are here.  There is a draft notice of appeal - so subject to the index and perhaps this order made today for expedition, it is in final shape?

MR WILLIAMS:   Yes, your Honour.

HIS HONOUR:   All right.  I will make these orders.  Is that your understanding, Mr Macfarlan?

MR MACFARLAN:   Yes, it is, your Honour.

HIS HONOUR:   I order:

1.        The hearing of the Applicants’ application for special leave to appeal from the whole of the judgment of the Court of Appeal of the Supreme Court of New South Wales given on 20 May 2005 be expedited.

2.        The special leave application be added to the list for hearing in Sydney on 17 June 2005.

3.        Abridge the times and procedures specified in rule 41.09 to the extent necessary to enable the application books to be prepared by 4 pm on Tuesday, 14 June and direct the parties to consult with the Registrar forthwith to achieve that end.

4.        Costs of the summons will be costs of the special leave application.

MR WILLIAMS:   If the Court pleases.

HIS HONOUR:   Thank you, gentlemen.  I will now adjourn.

AT 2.25 PM THE MATTER WAS CONCLUDED