Sali v SPC Limited

[1993] HCATrans 264

~	t.	IV
~

-... ~':,

c:=;aC%lt:lt1lltll-.Ullt.C'J1«••••••• .. • .. ••••••..,•••0111lfllC'r.Jt:!fQ1X!'I

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M33 of 1993

B e t w e e n -

HASET SALI

Appellant

and

SPC LIMITED

First Respondent

and

BLAKE DAWSON WALDRON

Second Respondent

Sali(3) 1 7/9/93

BRENNAN J

DEANE J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 7 SEPTEMBER 1993, AT 12.08 PM

Copyright in the High Court of Australia

MR R.A. FINKELSTEIN, OC: If it pleases the Court, I appear

with my learned friend, MS E.J. HOLLINGWORTH, for

the appellant. (instructed by McLindins)

MR J.E. MIDDLETON, OC: If the Court pleases, I appear with

my learned friend, MR P.J. RIORDAN, for the

first-named respondent. (instructed by Phillips

Fox)

MR P.G. CAWTHORN:  I appear for the second respondent.

(instructed by Minter Ellison Morris Fletcher)

BRENNAN J: Yes, Mr Finkelstein.

MR FINKELSTEIN:  May it please the Court, if I could have

handed to the members of the Court a copy of our

outline and, as well, two exhibits to one of the

affidavits that appear in the appeal book, two

short letters. They are exhibits 4 and 5.

TOOHEY J:  I think we already have those.

MR FINKELSTEIN:  I see. I understand that they were sent up

by the respondents. I will ignore that then.

BRENNAN J: Yes, Mr Finkelstein?

MR FINKELSTEIN:  If the Court pleases. The Court will see

from our outline there are two grounds upon which

the decision of the Full Court is challenged. The

first is inferred error, that is to say that the

orders made by the Full Court resulted in
substantial injustice to the appellant by depriving
him of his right to appeal and in all likelihood

will bring about his bankruptcy. That order,

because of its injustice, can only have been made

by the Full Court failing to exercise its

discretion properly. The second ground of

challenge is the more traditional ground for

challenge in the exercise of discretionary power,

that is, the Full Court acted on mistaken facts,

acted on facts which were not proven nor open, and

acted on irrelevant considerations.

In order to explain each of those grounds of challenge there are about half a dozen essential

background facts that appear from the various

affidavits that are filed and appear in the appeal

book. The critical background facts are as

follows: originally the appeal was to be heard in

February 1993 at the earliest. The appellant had

retained senior counsel for that appeal. Next,
although the date is not absolutely clear, on about

Friday, 13 November, the appellant's solicitors

were told that the appeal may be listed on

30 November, that is, two weeks forward. There is

Sali(3) 7/9/93

reference in the affidavit material to what in

Victoria was called ''the spring offensive". That

is unexplained, but it was part of the system

devised by the State court to get rid of the

backlog of cases that had accumulated over many

years and that spring offensive, from recollection,

came in in about October or November where, I

think, all of the judges were taken off all

business bar civil business and I think there may

have been a running Court of Criminal Appeal, but

the court devoted itself to getting rid of as many civil cases as they possibly could in the space of

about two months and that caused some difficulties,

but it is really not the heart of the problem.

At all events, I have indicated that on about

Friday, 13 November - fateful day - listing was for

30 November. Next, probably on about 18 November

the appellant's solicitors were advised that their

request to refix the date for the appeal, because

of the unavailability of counsel, that being the

counsel that had originally be retained at the time

when it was expected the appeal would be listed not

before February 1993, the appellant's solicitor was

advised by the listing master that the case would

not be refixed. I say 18 November; although there

is no direct evidence on this point, the letter

from the listing mater is dated 16 November, the

copy which is exhibited as exhibit 4 to Mr Fice's

affidavit, which is one of the exhibits that would

have been supplied to the Court and it will not

appear in the appeal book, has a date received

stamp of 18 November 1992.

TOOHEY J: Well, the first respondent's own chronology

accepts the 18th.

MR FINKELSTEIN: Yes. All I am saying is that it is likely

that that is the date, although the letter itself

bears date 16 November. From that day on - - -

TOOHEY J:  I am sorry; just so there is no misunderstanding,

accepts that as the date on which the first

respondent's solicitors received the letter, not
the date on which the appellant's solicitors

received the letter.

MR FINKELSTEIN:  I understand that, thank you, Your Honour.

TOOHEY J: That is identified in the chronology of

21 November, but that is taken from the McLindin

affidavit.

MR FINKELSTEIN: That is taken from the affidavit, yes, and

that date is referred to in - it is set out on

page 58 of the appeal book; the fourth paragraph of

McLindin's affidavit, which commences on the

Sali(3) 3 7/9/93

previous page, page 57. Now the date, 21 November,

is likely to be wrong, because - I checked the

almanac - the 18th is a Wednesday, which makes the

21st a Saturday, so the date is unlikely to be

correct and is probably a day before or one or two

days before.

Now, what happened from say about 18 November,

because fixing the precise date cannot be done from

the material that was before the Full Court, but at

all events that is a Wednesday, and even if it is a

day later, Thursday the 19th, or even the 20th,

from that time on, when it became clear to the

appellant's solicitors that the listing master, and

therefore the Full Court, would not agree to
refixing the case for a date after 30 November,
then made attempts to obtain or retain senior

counsel.

The affidavit shows that some 25 senior

counsel were approached and a number of counsels'

clerks were spoken to. The affidavit of McLindin

at page 58 of the appeal book says twice that

attempts were made to retain appropriate senior
counsel. That is the expression used in

paragraph 5 of the affidavit of McLindin on page 58

and paragraph 8 of the affidavit of McLindin which

appears on the same page. The expression

"appropriate" is not defined in the affidavit, but

in the context must be taken to mean counsel who

practises in the area of the law that the appeal

and the facts dealt with, that is a company law

case.

After approaching 25 counsel in a period of

about a week and a half, counsel was retained.

Again the precise date cannot be identified, but it is likely to be about 25 November. Counsel had had

time to receive the papers, that is, the brief, and

had a conference. On the 26th, this is the

Thursday, counsel had been retained, indicated that

he may be part heard and therefore unable or

unavailable to open the appeal on the following

Monday. That night, Thursday night, exhibit 5 to

Mr Fice's affidavit, a handwritten facsimile

communication was sent to the respondent's lawyers,

not surprisingly headed "urgent", identifying

counsel saying counsel "has had to withdraw because
his Full Court matter could be part heard on 30th

November 1992. In the circumstances we shall apply

for an adjournment to some time in December to

allow us to proceed. The application will be made

to the Full Court tomorrow morning."

Friday, towards the end of the month, is traditional motion day in Victoria for applications

before the Full Court, but an application like this

Sali(3) 7/9/93

could be brought on at short notice in any event

but, by coincidence, Friday is motion day in

Victoria.

The application for the adjournment was not

dealt with by the Full Court on the Friday.

TOOHEY J: Before you go much further in the chronology,

Mr Finkelstein, there is one thing I do not quite

understand. On 26 November a fax was sent

indicating that Mr Murdoch's unavailability related

to the possibility that he might already be caught

up in a matter. Does that emerge anywhere from the

McLindin affidavit which was sworn at 27 November?

MR FINKELSTEIN: Yes, in paragraph 6 on page 58.

TOOHEY J: Yes, I am aware of that, but that does not really

go quite to the point, does it? It says he:

could not commence preparation before Sunday

29th November 1992 as he was involved in

another Full Court matter.

Is there anything in that affidavit that points to counsel's inability to accept the brief because of the possibility of being already committed?

MR FINKELSTEIN:  No. I suppose it is the last lines of

paragraph 6, says:

he was involved in another full Court matter.

The fax says, could be part heard on 30th November.

Now the application, if I could just return to the

last legs of the chronology, if you like. The

application for the adjournment was not heard by

the Full Court on the Friday. It was stood over

until the Monday.	The appeal itself was fixed to
commence at 10.30 on Monday the 30th.	The

application for the adjournment of that appeal was

fixed to be heard at 10.00 am on the Monday.	As
the Court knows - - -

DEANE J: Where does it appear that the application was

stood over from the Friday to the Monday?

MR FINKELSTEIN:  In the affidavit of Mr Fice, at page 64,

paragraph 9. Mr Fice, he says:

attended Court with counsel on the morning of

27 November -

that is the Friday

only to be informed that the application would

not in fact be heard on that day but that an

Sali(3) 7/9/93

application would be made to the Full Court at

10.00 am on 30 November.

DEANE J: But that does not say that your side wanted to go

on with the application.

MR FINKELSTEIN:  No, it doe.snot. What I said, I think,

represented my understanding rather than what

Mr Fice says in his affidavit. It was my

understanding, it may be incorrect, that it was

stood over because the Court could not, or would not, for some reason deal with it on the Friday.

BRENNAN J:  Was any of the material that you have drawn our

attention to thus far, brought to the court's

attention on the Friday .....

MR FINKELSTEIN:  The affidavit of McLindin was before the

court. It is an important feature of what happened

on the Monday morning. The affidavit of McLindin

was not filed, but it was read to the court and it

is very unlikely, although none of the material

before this Court points to it one way or the

other, that copies of the affidavit were made

available to the members of the court.

So that it is clear that it was read. That is

common ground, and that appears in an affidavit of

Ms Hibberd when she describes what did happen

before the Full Court. The Hibberd affidavit which

begins at page 81 of the appeal book makes clear

that McLindin's affidavit was read.

TOOHEY J: The material goes further, you know. If you look

at page 79, Mr Jones, who was then appearing -

MR FINKELSTEIN:  And counsel himself says it was read.

TOOHEY J: Well, he says:

I moved the Court for an adjournment of the

Appeal and in the course of so doing handed to

the court an Affidavit of McLindin.

MR FINKELSTEIN:  The other material that was before the

court was the affidavit of Mr Fice which begins at

page 61, and presumably therefore the exhibits to

that affidavit. There was also an earlier

affidavit of Miss Hibberd which begins at page 67

of the appeal book which is the affidavit which
sets out that she had had discussions on the Friday

with a number of barristers' clerks. That is the

sum total of the material that was before the Full

Court, and the affidavits that appear from page 78

of the appeal book and on are affidavits designed
to show what did and what did not take place before

the Full Court because no transcript of the

Sali(3) 6 7/9/93

proceeding was kept apart from recording the

reasons for judgment and discussion after that.

I have to remind the Court, because it is an

important point, that there were two separate
applications made by the appellant through counsel
to the Full Court on the Monday morning. First,
there was an application for an adjournment.

McLindin's affidavit asks for an adjournment of one week or so. Miss Hibberd's affidavit, when she

describes what had happened before the Full Court,

says that the application was for an adjournment of

two weeks. For our purposes it probably does not

matter whether it was for a week or so or two

weeks. At all events, that application was made

and refused.

DEANE J:  Mr Finkelstein, there is nothing said anywhere,

that I have seen, about junior counsel. I mean, do

not you have juniors at the Victorian bar in this

sort of matter any more? Or do they not perform

any function?

MR FINKELSTEIN: We do have junior counsel - - -

DEANE J: Well, was there one? Was a junior briefed? Was

he the junior who was at the trial? If so, why was

not he there?

MR FINKELSTEIN: It is dealt with in the affidavit material.

DEANE J: Well, I have missed it.

MR FINKELSTEIN: In Ms Hibberd's affidavit - this is the

last affidavit - if you look at paragraph 9 on that

page, page 83, that is the only reference in the

material to the position of junior counsel. It is

clear, as the court understood, as is also clear

from paragraph 9, that the case is one that

required the attendance of senior counsel to - I am

not saying that junior counsel, of course, could

not properly run the case, but it was a case that,

in everybody's expectation, required the services

of senior counsel.

I had indicated that the application was to

adjourn the hearing for a period of either one week

or two weeks - most likely two weeks - and that was

refused for reasons which I will take the Court to

in a moment and criticize them - but immediately

after that refusal, counsel for the appellant asked for the proceeding to be stood down until 2.15 that day, the Monday, to see whether or not counsel

could be retained to conduct the appeal commencing

on the next day, the Tuesday. That application was

also refused.

Sali(3) 7/9/93

In refusing the first application, that is the

application to adjourn for a week or two, each

member of the Court gave separate reasons and each

demonstrate error. So that if I just deal with the

case at the moment on the basis that the exercise

of the discretion presently is challenged on the

second of the two grounds that I identified, that

is, irrelevant considerations, wrong facts and so

on, each decision demonstrates error.

Can I start first with what Mr Justice Marks

said of the application. His judgment commences at

70. There is a preliminary point which is

important for both grounds of challenge and that

appears in outline 7 of His Honour's judgment.

The case, he says, was fixed for hearing for

two or three days. You know that it was due to commence on a Monday, and His Honour goes on to

say:

The Court allocated the time for the hearing

of the appeal and did not fix any other case

to be heard this week.

So the Court had one full week free with a two to

three day case fixed.	We will say more about that
later.	Can I come to page 71 where His Honour is

commencing to give reasons for refusing the

adjournment. It starts at about line 19. Even by

way of introduction, if I go to about 11, he says

that all the judges had looked at the reasons for

judgment of the trial judge and says:

It is not apparent on its face that the appeal

is one which would require lengthy preparation

for presentation of argument, although no

doubt -

counsel wants more than a weekend. That is fair
enough. But at the moment, according to the court,

it is not a case that/requires massive preparation,

and not surprisingly, if the case has been fixed

for estimated duration two to three days.

What His Honour Mr Justice Marks does from

line 19 on is demonstrate that his understanding of

the ground for or the reason for the adjournment

application was the unavailability of senior

counsel who had been retained on the basis that the

appeal would be heard in February.

BRENNAN J: That is not quite the way in which he put it, at

about line 5, is it? He is speaking about the

unavailability of senior counsel generally as being

the ground advanced for the application.

Sali(3)	7/9/93
MR FINKELSTEIN:	In that sentence, yes. The reference to

the affidavit in line 5 itself or the sentence

which begins at line 5 is a reference to the

affidavit filed by Ms Hibberd saying that she had

spoken to the barristers' clerks and had been told

that 29 counsel were available. It is not a

reference to the material that was relied upon by

the applicant for adjournment but any reading,

especially a fair reading, of the reasons for

judgment from line 20 on, in our respectful

submission, showed that His Honour did not have in

mind that part of the affidavit of McLindin that

explained that 25 counsel in a period of a week and

a half or so had been approached and the client

retainer, and that a counsel had been retained but

was likely to be caught part heard on the Monday,

because His Honour concentrates everything that he

says on the original retainer of the original

senior counsel who had been retained when it was

expected that the case would be heard in February

1993.       He makes no mention at all of the other

circumstances described in McLindin's affidavit.

First of all, he relates those facts, the

facts of the earlier retainer, at the foot of

page 71, and then if the Court looks at page 72, at

line 7 or 8, the sentence which begins:

It must have been apparent to the appellant

for some time that the services of other

senior counsel would necessarily have to be engaged in order to be ready to conduct the

some time in excess of two weeks in which to find counsel.

appeal on the dates allocated for its hearing.

Now, he ignores there that McLindin says, in his

affidavit, that some 25 counsel were approached in

that two-week period to be retained for the

purposes of the appeal. There is no mention of

that at all; as if it did not occur, and the sense

of the sentence is critical saying, "You knew you	had two weeks; sub silentio you did nothing about
the problem in that two-week period". His Honour goes on, in the next half dozen lines, to explain what he perceives to be complete inactivity by
desire, that the case not go on at all because of the financial embarrassment of the appellant.

Now, that view can hardly be consistent with

the affidavit of McLindin, where he said he did his

best to get suitable counsel and tried and

approached 25 counsel, to conduct the appeal, and ultimately got counsel to conduct the appeal and,

on the Thursday night, 26 November, that counsel

Sali(3) 9 7/9/93

announced his potential unavailability because of

the likely conflict on the following Monday.

None of that is consistent with the judge's finding that what the appellant was trying to do

was to avoid the hearing of the appeal altogether.

He says at lines 18 and 19 - - -

DEANE J: Except in fairness to His Honour, it is very, very

difficult to work out what your side is saying

happened. I mean, you have got the stand about

approaching 25 counsel which does not lie very well

with the other evidence, subject to your word "appropriate". But then, if you look at your

affidavit, it says or it implies that Mr Murdoch

indicated from the word go that he would not

commence preparation until 29 November, and then

indicates that on that basis, he was briefed on the

footing that the matter would be adjourned. Now,

this fax seems to endeavour to put a different

situation on it, and that is that something

unexpected had arisen after Mr Murdoch had been

briefed which made the adjournment necessary,

whereas your affidavit indicates that from the

moment Mr Murdoch was briefed it was intended not

to go on on the date fixed.

MR FINKELSTEIN:  Yes. I accept that there is that

inconsistency between - - -

DEANE J:  I did not want you to accept it, I wanted you to

answer it.

MR FINKELSTEIN: At the end of the day, on the question of

the exercise of the discretion, it should not

produce the consequence that the adjournment should

have been refused, that the adjournment was

refused. The mere fact that 25 or 26 counsel had

been approached and, ultimately, one found that

would do the case, and do it as soon as it may be

possible, but asking for a short adjournment, does

not entitle - - -

DEANE J: - Well, you say a short adjournment, he says a week

or so.

MR FINKELSTEIN: In the affidavit itself?

DEANE J: Yes.

MR FINEKLSTEIN: Yes, but I ask the Court to accept that

that is a short adjournment, that is not an

adjournment for a lengthy period Of time. But, at

the end of the day, the question is, let us say
that the request for an adjournment of a week or

so, or two weeks, is wholly unreasonable in the

circumstances. The answer, for the Full Court, in

Sali(3) 10 7/9/93

the proper exercise of its discretion is not, in

our respectful submission, to say, no, you will get

no time at all, suffering the consequence that the

appeal will be called on and dismissed. There is

no reason why, when the judges had formed the view

that it would take a day or so, or two days or so,
to prepare the appeal, and the court had the week available to deal with the appeal, not having set

down any other business during that week, that the

adjournment, as requested, did not have to be

granted.

But that is not to say that no adjournment was

appropriate in the circumstance, but some other

order could have, and we say, should have been made

to give the appellant an opportunity on the Monday.

The application was heard at 10. As the transcript

shows, it was pretty short, it was over by 10.30, a

quarter to eleven. By that time, the appellant -

if the Full Court had said, we will not give you

the two weeks, but we will give you till Wednesday,
that still allows this case to be dealt with in the

allocated time. That allows you to find senior or

junior counsel who will do the preparation, and

have, effectively, two days.

Now, such an order would have not

inconvenienced the court at all, or in any

significant way, because it had the time available.

Such an order would have produced no disadvantage

to the respondents, none articulated in any event.

The only disadvantage that the respondents

articulated in argument to the Full Court was costs

and special orders for costs could have been made,

the price of the adjournment might have been that

costs had to be paid into court or to the

respondents of the adjournment application before

the appeal commences. There are a number of ways

in which the Full Court could have properly secured

the costs position of the respondents, which is the

only prejudice that they identified in resisting

the application for adjournment.

The court knows that there was an undertaking

given to prosecute the appeal with due diligence on

an application for stay that had been made earlier

in the year. If the court was of the view that the undertaking had been breached - if the court was of

that view - whether it had sufficient evidence or

not to form a prima facie view, what the court

could have done was release the respondents from

the undertaking not to press their claim for costs.

There are ways in which the respondents' position

could easily have been protected. There are ways

in which the position of the court could have been

dealt with so as not to inconvenience the court.

Not to grant any adjournment at all, not even for

Sali(3) 11 7/9/93

48 hours, in our respectful submission,

demonstrates a miscarriage of the discretion.

McHUGH J:  The difficulty I have about the whole case is

that you just cannot recreate the atmosphere that

went on in the Full Court.	We do not have a
transcript - - -

MR FINKELSTEIN:	Of the argument, no.
McHUGH J:	- - - we do not have what counsel is putting; we

do not have the questions put by the judges; we do not have counsels' response. You get some sort of an idea from one of the affidavits put on by the

respondent, but, I mean, you want us to say that

there is a miscarriage of justice on these papers.

My feeling at the moment is, I just do not know

what went on in the Full Court that day.

MR FINKELSTEIN: Regardless of what went on, that may not be

the real question in any event.	What you do know
is the consequences of the orders made.	The

consequence of the orders made were as I have

described them: the appellant, who has a right to appeal, had his appeal determined without hearing.

It was dismissed because he could not prosecute the

appeal. Now, that in itself, in our respectful

submission, is a significant serious hardship, when

compared with any hardship or inconvenience that

may have been caused the respondents or

inconvenience to the Court on the other hand, had

the adjournment application been granted, even to a

limited extent.

McHUGH J: Yes, that looks at it in the abstract, but cases

are conducted and arguments presented in a

particular way; the court give an extant judgment

which reflects the argument; there is an atmosphere

in the court; points that 12 months later are

examined in some detail are just gone by default;

nobody directs his or her mind to it. It is very

difficult to ask another appellate court to

interfere with an exercise of a discretion in a

case like this.

MR FINKELSTEIN:  Not if this Court is satisfied that serious

injustice was done.

McHUGH J: But in determining whether serious injustice is

done you cannot leave out what happened before the

Full Court; the way the argument was presented.

The application for adjournment may have turned on

a single issue. Mr Jones may have been pushing a

particular point; that is the point; it is

rejected; that is the end of the matter.

Sali(3) 12 7/9/93

MR FINKELSTEIN:  You know the points that were being pushed

in part because you have the affidavit material

that tells you the basis of the application.

McHUGH J: Except it was not allowed to be filed, was it?

Part of its contents were read or its contents were put before the court.

MR FINKELSTEIN: First, it was read; and secondly, it is

reflected in Mr Justice Marks' judgment. Parts of

his judgment that start at page 71 towards the

second part of the page, that is reproducing the

material that is found in the affidavit. It is not

reproducing it exactly, but it is summarizing it.

BRENNAN J:	Mr Finkelstein, the difficulty I am having with your argument is that on page 71 in the first
paragraph on that page, the way I read that is that fortnight's adjournment or a week's adjournment is
being put on the basis that the appellant cannot
get senior counsel. There is an affidavit here
that says senior counsel were available. I do not
believe the ground.  I think it is a lot of cant,
or as Justice Tadgell said, 'humbug'".
MR FINKELSTEIN:	Yes, he did.
BRENNAN J:	Now, is that not the tone that comes through

these judgments:  we are being put upon?

MR FINKELSTEIN: That is exactly what the members of the

court were saying.

BRENNAN J: Yes.

MR FINKELSTEIN: But without justification. They were, in

effect, saying that the affidavit was deceitful.

But on any fair analysis there is no inconsistency

between a solicitor saying that he approached 25

appropriate counsel, on the one hand, and the clerk

saying that there are counsel available in

chambers.

McHUGH J: The affidavit is very vague. You are not told

when, or who.

MR FINKELSTEIN:  You know when, because there is only a two

week period when this can possibly occur.

McHUGH J: In this context, days are of considerable

importance.

MR FINKELSTEIN: That is true, but in any event, it is

within the confines of a period of a fortnight and
seeing the position of 25 "appropriate", which is

the word used in the affidavit, senior counsel, in

Sali(3) 13 7/9/93

a period of 14 days - probably a bit less because

the chronology leading up to the last counsel is to

the Thursday, say, does not show inactivity, and

does not show that efforts were not being made to

try and retain senior counsel. Even if no effort

had been made - no, I cannot say that. If minimal

effort had been made to retain counsel for the

case, then it might be said that the court has been
put upon. But when the position of McLindin is
that he did approach 25 counsel, and the statement
is not challenged and, indeed, the affidavit

material that said, "You go talk to a clerk and the

clerk will tell you that there are counsel in

chambers", does not contradict that 25 counsel had

been approached by McLindin. It does not say

anything about that at all. It says the people are

available in chambers who might practise in
jurisdictions which have got nothing to do with the

sort of law that was to be dealt with by the Full

Court in this case.

That is not a foundation for the court saying

that there was deception being practised in the

sense that what the appellant did not want, ever, or as long as he could put it off, was his appeal

coming on. That is the gravamen of the court's

findings. They had it in mind that the appellant

was trying to avoid the appeal coming on. That is

does not allow that finding.

the last thing that he wanted, and the whole thing material

was just a stalling tactic to delay what the

That is, no doubt, the impression that was

created and, there is no doubt, the impression that

was sought to be created.	The material does not
allow it.	The material not only does not allow it,

it contradicts it. It is inconceivable that you

can find that within a period of two weeks - it may

be a day or two less, but within a period of two

weeks, fi - first of all, you have got senior

counsel retained knowing the case is going to come

on in February. That does not show that you want

the appeal to be put off forever. Then you have

got a period of two weeks and you get in touch with
25 senior counsels to see if they will do the
appeal. That does not show that there is any

attempt or effort to defer the hearing of the

appeal for as long as possible, forever if

possible.

The fact that they only asked for a short

adjournment demonstrates that that is not the case,

but it is, in our respectful submission, without justification that when the court said, "You are

not going to get your two week adjournment, or one

week adjournment" and then the court says "and I am

Sali(3) 14

not even going to give you until 2.15 to see if you

cannot get counsel for tomorrow." "Whoever he is,

whether he is senior counsel or junior counsel,
whether he is versed in the field or knows nothing

about the field", the Full Court said, at 10.30 or

quarter to eleven, "I am not going to give you

until 2.15 to phone counsel to run the appeal

tomorrow." That is exactly what was asked for.

Junior counsel who did appear and,

fortunately, did not know anything about the merits

of the case, at 74 says:

I am instructed that my instructor will

endeavour this morning to obtain the services

of senior counsel, if the matter could be

adjourned until 2.15 to enable him to advise

the Court that such counsel has been obtained

and then for the matter to proceed tomorrow.

Now, it may have been, in the circumstances,

difficult to get counsel to take the brief that

morning to run the appeal first thing the next
morning, but perhaps not impossible for counsel to

be retained that morning to run the appeal on

Wednesday.

BRENNAN J:  We will continue this at 2.15, Mr Finkelstein.

AT 12.54 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.23 PM:

BRENNAN J: Yes, Mr Finkelstein,

MR FINKELSTEIN:  I want to turn away from the facts for one

moment, and just make reference to a couple of

lines in a case which encapsulates the legal

principles involved, Carryer v Kelly, (1969)

90 WN 566, a decision of the New South Wales Court

of Appeal, especially in Justice Asprey's

judgmentat 569. Without citing the case, what this

decision picks up are the principles expressed in

Maxwell v Keun (1928) 1 KB 645, especially what
Lord Justice Atkins says at 653, which are, in

fact, summarized in Walker v Walker, referred to at

the foot of the page, fourth-last line. It is the

fourth line into the last paragraph that I want to

take the Court to. His Honour says:

Sali(3) 15 7/9/93

An adjournment which, if refused, would result

in a serious injustice to the party applying for it should only be refused if that is the

only way that justice can be done to the other

party -

Now, that statement of principle finds support, as

I said, in Maxwell's case, in Walker itself, where

the language of the Court of Appeal is much the

same as appears here; in a number of other

decisions, especially in the Court of Appeal in New South Wales most recently in GSA Industries Pty Ltd

v NT Gas Ltd, (1990) 24 NSWLR 710, especially in

President Kirby's judgment at 712, where he cites

from his own decision in Sydney City Council v

Ke-Su Investments, and Maxwell v Keun was itself approved by this Court in Bloch v Bloch.

TOOHEY J: Can I just ask you this, Mr Finkelstein: has

Carryer v Kelly, in principle, been expressly

approved in any of those later decisions?	I ask
you that largely because of some change in

philosophy in these matters because of scheduling

of court commitments and so on.

MR FINKELSTEIN: Yes, well, more recent cases unreported in

Queensland, unreported in South Australia,

decisions of Full Courts in those States, and decisions of the Federal Court say that it is proper to take into account in weighing the balance

of where justice may lead the exercise of a

discretion, that it is appropriate to take into

account that courts are busier and deferring other

people's causes that are waiting in the lists is

something which is to be avoided if possible, but

the decision in the Court of Appeal in New South

Wales, GSA v Gas, (1990) 24 NSWLR 710 at 712,

President Kirby cites himself from the

Sydney City Council case, and the reference to

His Honour's earlier decision and the citation from

it is the last full paragraph on the page, and the

relevant extract that I want to refer to is about

8 lines from the bottom of the page:

However, it has recently been made plain,

including in this Court, that where refusal of

an adjournment would seriously prejudice a

party, the application should be granted -

reference to Watson again, and that is the same

decision, of course, that Justice Asprey referred

to in Carryer, and in each case the language used

by the judges concerned mirrors what was said in

Walker. The court delivering the judgment there

was Sir Jocelyn Simon.

Sali(3) 16 7/9/93

Now, our principal point is that the

injustice - if I can put it, the gross injustice -

that resulted in the court refusing, in the

morning, to adjourn the case over until 2.15 that

day to see whether or not the appeal could commence

the next day, with counsel, or at worst the day

after, resulted in such a gross injustice that the

order should never have been made.

It does not, in that sense, call into play the operation or the principles expressed in recent

cases about the importance of not interfering with

court lists and progress of cases because in this

case, if that had been allowed, and that the appeal

could have commenced on the Tuesday or the
Wednesday, then there would have been no

interference with any other case. As I said at the beginning, the court had set aside the week, or had no other cases fixed for that week, and the case

was a two or three day case, and remained a two or

three day case.

It is fundamental to our submission that the

refusal of that short adjournment to enable the

plaintiff to present his appeal was unwarranted
because there was no corresponding or any real
disadvantage to the respondents. There would have

been no serious inconvenience of the court and, at

best, the parties would have waited around,

including the court waiting around for a day or so.

And, in those circumstances, if that had been

allowed, if that order had been made, and the
appeal could have proceeded within a day or so,

then at that stage, if the plaintiff or the

appellant before the Full Court was not ready,

then, and only then, was there justification for

making an order of the type that was made.

The real foundation for the court's refusal to grant the adjournment, both the week or two week

adjournment on the one hand, and the half day

adjournment that was sought - no doubt really

contemplating an adjournment for the day over to

the next day - the real foundation for it was that

the affidavit relied upon was not believed. The

court had clearly formed the opinion, because the
judges say so, that there was deception being

played upon the court, and there is nothing in the

material that enabled the court to come to that

decision.

Even if you say the appellant was slack; even

if you say that the appellant's lawyers were not

conducting the case properly with due diligence,

bearing in mind all of the obligations they had to
the court, and all the obligations that they had to

the client - even if you say all of those things

Sali(3) 17 7/9/93

and even if they are all true; even if there was

slackness, there is no evidence of deception.

There is no evidence that the appellant was trying

to deceive the court in the way that the court
thought it was being deceived in order to put off

this appeal forever. There is nothing that is

consistent with that. The only thing that could be

said is that the other counsel - there was evidence

before the court that there was other counsel

available in chambers.

BRENNAN J: Other senior counsel.

MR FINKELSTEIN: Other senior counsel - I accept that.

BRENNAN J:  No reference to junior counsel ever made?

MR FINKELSTEIN: Other counsel, including senior counsel.

Even that fact did not justify the orders being

made having regard to the consequences of those

orders when it was clear that considerable effort

was made to get appropriate senior counsel. The

courts say again and again that they will try and

accommodate counsel, or have a party have the

counsel of his choosing where possible, but that is

not a basis for an adjournment.

In this case though, when 25 counsel in a

period of a week and a half or so were sought to be
retained, and the difficulties arose so far as the
appellant was concerned in the last day or so

before the appeal was listed, and in circumstances

where he only wanted a very short period of time,

and in circumstances where there was no

corresponding injustice to the respondents and no

serious inconvenience to the court, the gravity of

the effect of the orders, in our respectful

submission, justifies this Court saying that the

orders were wrongly made.

BRENNAN J:  Mr Finkelstein, I just put to you a proposition

about junior counsel and the fact that there had

been no reference. That was inaccurate, of course.

What I had intended to ask you was this: on

page 83 where there is a reference to Mr Bean, it

seems that Justice Marks was the source of the

inquiry.

MR FINKELSTEIN: Yes.

BRENNAN J: There had been no reference by counsel for the

present appellant to the situation of junior

counsel. It seems that junior counsel had been

briefed, when does not appear, but he was otherwise

engaged on the day on which the case was called on

for hearing.

Sali(3) 18 7/9/93

MR FINKELSTEIN:	Yes.
BRENNAN J:	Would the court be entitled to draw any

inference from that?

MR FINKELSTEIN:  Take the next sentence as well,

Your Honour:

Mr Justice Marks said that he assumed that the

appellant's case could not go on today without

a Queen's Counsel.

DEANE J: That was pretty obvious when all you had there was

a junior who claimed he knew nothing about the

case, which used to be the standard ploy for
getting an adjournment, sending somebody along who did not know anything about the case and the judge

had no choice. Not in Melbourne, of course.

MR FINKELSTEIN:  If it is clear that it was a ploy and that

a deception was being practised on the court, then

the court was justified in making the order or

refusing both applications for adjournment. But

short of a deception being practised on the court

then nothing warranted those orders being made,

even dilatoriness. Even if there had only been a

half-hearted attempt to get counsel, which is
contrary to the facts, it would not have justified

those orders being made.

If there was a deception, yes, but there is no

evidence that entitled the court to conclude, as it

did, that the court was being deceived. They might have said that the party was slack, they might have

said his lawyers were slack, they might have said

that they should have tried a lot harder. It still

does not take into account that with the so-called

"spring offensive", which is referred to in the

affidavit material, that people at that time in the

Victorian courts did only have a short time to

engage counsel because cases were called on

quickly.

This case was called on exceptionally quickly - 2 weeks, a week and a half if you take as

your starting-off point the time that the master
wrote to the solicitors and said that, "We are not

going to refix the case in accordance with your

request". That was some 18th when the letter was

received, with the appeal listed on the 30th, with

two weekends in between. In that time 25 counsel

were approached. That is not evidence of a person

who wants to put the appeal off. And asking for an

adjournment of a day or two or a week or two is not

evidence that would justify the court in saying

that this is an appellant who does not want his

Sali(3) 19 7/9/93

case to come on. That is what Justice Marks said,
and that is what Justice Tadgell accepted, that the
application was humbug; that is, it was deceptive;
that is, the court was being imposed upon.

There is no evidence that justified those findings and on that basis the decision was in

error because the injustice that was caused was not
warranted by the circumstances of the case with no
corresponding disadvantage to the court or any

other party, not a disadvantage that could not be

cured by an appropriate order, a self-executing

order on the question of costs, paying the money

over before the appeal starts, paying it into court

within 24 hours.

There are a number of different ways that the court could give absolute protection to the

respondents and it was not inconvenienced, it set

aside the week. I will say it again and again and

again: there was no justification for the making of this order. The injustice caused was so gross

that the decision was bad, the discretion

miscarried.

DEANE J:  Mr Finkelstein, when was the affidavit of the

respondents, saying that an approach to four

clerks - about 11 or 12 - led to 29 senior counsel

being available, filed.

MR FINKELSTEIN:  It is sworn the 27th, which is the Friday,

and I can only assume that it was done - and

probably filed on the 27th - in anticipation of the

adjournment application being dealt with by the

Full Court on that Friday.

DEANE J: Because what might be said against you is that in

the context of that affidavit, paragraph 6 of the

affidavit, which was not even filed but was

produced at the hearing, is, on the application for

an adjournment, that is at page 58, singularly

uninformative. I mean, what does "approaching some

25 Queen's Counsel" mean? Does it mean mark your

own fee, or in Victoria do you approach with a

brief fee, or - - -

MR FINKELSTEIN: Only very recently, Your Honour, not in

days gone by. One thing that could have happened,

if a request to stand the case down until 2.15 had

been granted, is that the appellant could have at

least dealt with those very issues. The appellant

could have explained to the Court on a name by name basis, on a date by date, hour by hour basis, which

counsel had been approached, when, in what

circumstances, what the answer was, whether there
was a delay, whether you had to wait four hours

before counsel got back or returned a phone call,

Sali(3) 20 7/9/93

and so on. I understand what Your Honour is saying

to me is that the affidavit does not say very much.

DEANE J:  One is left completely to speculate about what was

going on. I mean, who was at the court on Friday

when the matter could not be reached, and why did

not that counsel, if it was a counsel, find out

enough about the matter to at least be a little

more or better informed? You see, what all this is

aimed at is you are, in effect, asking us to say

that three judges of the supreme court, each of

whom is closely acquainted with the legal

profession in Melbourne, are mistaken when they
say, in effect, "it is a lot of humbug" to suggest

that you could not have got counsel in time.

MR FINKELSTEIN: Yes, and mistaken because the Full Court

had exactly the same material that is before this

Court.

DEANE J: Well, no obviously, with respect, Their Honours

are acting on the basis of their knowledge of the

legal profession in Melbourne.

MR FINKELSTEIN:  I do not, Your Honour, suggest that it may

have been - I am not saying that it was impossible

to get a barrister, I am not saying that, that is

not our submission. You could get counsel of one

year - I mean, if he is brave enough to do the

case.

DEANE J:  I do not think Justice Tadgell had that in mind

when he said, "I am quite unable to accept this

submission that it has been impossible to obtain

the services of counsel for the purpose of arguing

this appeal on behalf of the appellant beginning

this morning" .

MR FINKELSTEIN: With respect, the statement that was sworn

to on oath was that 25 counsel and clerks - - -

DEANE J:  But that is what I was pointing out to you. I

have no idea what, in the context of the statement

that a call to four clerks produced 29 senior

counsel available on this day. I have no idea what

a statement that 25 counsel were approached means.

MR FINKELSTEIN: First of all, in the context of the

application, but more particularly in the context

of the sentence in which that expression is used,

it says they were approached and they were not able

to secure their services. It can only mean that

they were asked whether they would accept a

retainer in the appeal and said no, it is not

capable of any other meaning.

Sali(3) 21 7/9/93

BRENNAN J: Well, that is not quite what was said, was it?

It was, after approaching all the barristers'

clerks and some 25 Queens Counsel, we were unable

to secure the services of counsel. It is a very

broad statement.

MR FINKELSTEIN: But what happened was the 26th was then

approached because it leads into what happens with

the last counsel.

DEANE J: But, when you read that sentence, and with it you

read that approaching only four of those clerks

produced 29 senior counsel rearing to go, as it

were, it is all a bit difficult.

MR FINKELSTEIN:  It still does not get away from what we say

is the proper issue, that is, whether the injustice

which is caused by the order is so severe, or so

serious, that - just assume that this tells you

that they were slack.

DEANE J: What I was putting to you is, and I think you

answered:  we have to say that the conclusion of

three members of the Full Court that this was a lot
of humbug, in the context of their knowledge of

conditions at the Victorian bar, was simply wrong.

MR FINKELSTEIN:  Yes and no. You have to say that the

conclusion was wrong, but not in light of the

conditions of the Victorian bar; that is not right.

What is relevant is whether or not you can fairly

say that this appellant was deceiving the Court

because he did not want his case to go on; which is

what the members of the court said, and what I am

saying is that even if you could secure the

services of half a dozen Queens Counsel, if you

rang them up and they were in their chambers, and

they said, "Yes" on the Thursday night, "We will

work up this case for Monday morning", even if you

can do that, that has still got nothing to do with

saying that the appellant was deceptive, or

deceiving the court, if he did not take that course

because, what our submission is is that nothing in

the material indicates that the appellant was
trying to get rid of the case; stand it over till

next year, or half a year down the track, or

whenever. That is not consistent with an

application to defer for a week or two weeks.	It
is just completely inconsistent.

So that the conclusion that they arrived at

does not depend and cannot depend on their state of

knowledge of availability of counsel at the bar. The question is whether or not the applicant was deceiving them and all of the evidence points to

that conclusion not being open, and - - -

Sali(3) 22 7/9/93

BRENNAN J:  I was just going to draw your attention to the

end of paragraph 5 and the beginning of paragraph 6

of the affidavit of the respondent at page 82.

There it seems that the affidavit of Mr McLindin

was read out in response to an assertion by

Justice Marks that his associate had contacted the

solicitors for each party to ensure that they were

ready to proceed several times in the weeks leading
up to the date the appeal was listed for

hearing - - -

MR FINKELSTEIN: Yes.

BRENNAN J:  - - - and then this affidavit was read out.

MR FINKELSTEIN: But you know also that during that period -

and it cannot be more than two weeks - the

appellant was seeking to retain the services of

counsel. So the court rings up, through the

presiding judge's associate, to say, "Will you be

ready?", at the same time counsel is being sought.

That still does not allow the Full Court to say

that it was being deceived; far from it. Our

submission is that there was no evidence at all to

allow the finding that there was deception. And as

I said it before, the evidence, although it is

skimpy, and it could have been page after page
after page of recitation of facts to show on a day
by day basis, and should have been showing on a day
by day basis what had been done and what was being

done, what the Court does know is enough to show

clearly that the finding of deception was not open

to them.

That does not depend on whether a solicitor

rang up the barrister's clerks to see whether or
not senior counsel or junior counsel or either was

available in chambers to do the case. The question

is whether there was a genuine attempt to deceive

the court, and our submission is that it was not

open, and on the basis of the material, at the very

worst - at the absolute worst - the court could

have said, "Well, look we are worried. McLindin's

affidavit says one thing, we think that the

affidavit may not be accurate. We think that the

affidavit may be deceptive. McLindin, himself,

said that he has prosecuted the matter as

diligently as possible, he always tries to comply

with orders, directions, rules and so on." If the

court was mindful to make the orders that it did in

circumstances where counsel for the respondent

said, "Our prejudice is costs," because that is

identified in the affidavit material, why cannot

the court say, "Before we make the order we will

give you an opportunity to explain what, in fact,

has happened." No point doing that after the

order, and that could have occurred on that very

Sali(2) 23 7/9/93

day. The court could have allowed the matter to be stood down until 2.15, with the warning that unless

a proper explanation is made, then we will dismiss

both the application and the appeal.

But, to do it in the manner that the court did

was just unjustified - unjustified because of the

consequences, and it is not enough to say that the

material before the court was sloppy, because that

is something that can be cured, and easily cured,

one way or the other so as to satisfy the court

about the matters that it was really concerned
about or to make it clear to the court that there

is only one order that should go in the

circumstances. Appellant did not have the
opportunity to do that, and that could have been

done by preparing perhaps a more detailed affidavit

in the morning, mentioning it again at 2.15, at no

inconvenience of any real nature to anybody,

including the court.	May the Court please, they
are our submissions.

BRENNAN J:  Thank you, Mr Finkelstein. Mr Middleton.

MR MIDDLETON: If the Court pleases. In the end our learned

friend's submissions come down to saying that there

has been a gross injustice because of the orders

made by the Full Court, and he is forced to say, at

the end of his submissions, that it is unjustified

because of the consequences. But, there will

always be consequences which will be against the

interests of one or other of the parties, and there

will be consequences in certain cases that will be

final in the sense of precluding someone from
amending a statement of claim or a pleading, or
final in the sense of precluding someone from

arguing a point before the court.

So, to say, "One just looks at the

consequences and no further," is not a way in which

you can approach, in our respectful submission, to

determining whether or not there has been a gross
injustice.	One has to, inevitably, go back to

determine what the application was before the Full

Court; what was put before the Full Court; what

matters he considered to determine those particular
matters, and is a balancing act, and my learned
friend, Mr Finkelstein, and ourselves are at one to

say it is the exercise of discretion. Courts are

loath, normally, to interfere with the exercise of

discretion. There are a number of considerations
that are put into the melting pot in relation to
the granting of adjournment.

On the principle, we would say - and perhaps convenient to say it now and submit to this Court -

that the statements in Carryer v Kelly, the 1969

Sali(2) 24 7/9/93

decision, have to be carefully read having regard

to later developments in the law because if, in

fact, as the modern cases now say, that one puts

into the balance the administration of justice,

court listing time and the fact that costs are not the cure for all evils because costs cannot always

completely compensate, then it cannot be said, as

my learned friend says in paragraph 4 of his

submission:

So, if an adjournment will result in

serious injustice to the applying party it

should only -

emphasis "only" -

be refused if that is the only way that

justice can be done to the other party.

Nor can it be said as is said in paragraph 5:

Serious injustice will occur if the refusal to

grant an adjournment will result in defeating

the rights of a party.

There are greater considerations that are taken

into account and they are not the only ones. Cases

have been referred to, and my learned friend has

referred to some.

The House of Lords, Your Honours will be

aware, have dealt with this matter in Kettleman v

Hansel Properties Ltd, (1987) AC 189, more

specifically at page 220 by Lord Griffiths who

mentioned the fact that applications are not looked

at just from the point of view of the parties.

There is a wider consideration to be taken into account.

TOOHEY J: There does seem to me to be a difference,

Mr Middleton, between that line of cases which are

concerned with applications to amend the statement

of claim by adding a cause of action or to amend a	defence by raising a plea of statute of frauds or
the plea of illegality well down the line, which
inevitably has consequences for the parties on either side, or let us say for the party who seeks
to make the application which is refused. That may
put a dent in the case, but it does not prevent the case being run. It is a different situation from one where the consequence of refusing the
adjournment is that the right of appeal really
disappears.

MR MIDDLETON: 

Your Honour, we would not contend that one

does not look to the consequence to determine which
way one should exercise one's discretion, and I

Sali(3} 25 7/9/93

would accept what Your Honour says that there is a

difference between precluding someone perhaps from

arguing one point and arguing all the points that

are open to that particular person because of the

fact that counsel did not think of the argument, or

because of some reason to that effect. It is a

balancing act at the end of the day, Your Honour.

TOOHEY J: Yes, but a number of those propositions that

reflect the modern philosophy of court
administration are made in the context of
applications to amend of the sort that I have

described - - -

MR MIDDLETON:	Yes, they are, Your Honour.
TOOHEY J:	- - - or an application to adjourn because a

witness is not available. And faced with the

prospect of adjourning a three month hearing the

court says, "No, we must go on".

MR MIDDLETON:	Your Honour is correct to say that is the context in which some of them appear and in which
those statements are made.  We say there is no
reason why those principles should not be applied
in the appropriate case to adjournment applications. There are some suggestions that it
is seen in the same light as to amend pleadings or
whatever and adjournment applications, although
specifically applied not to adjournment
applications in particular cases. But in
principle, Your Honour, we would submit to the
Court there is no difference other than the
consequence that applies as to whether it is completely cutting someone out from arguing a point
or not.

Your Honours, undoubtedly also as a matter of

principle - and this was stated in the case of

Squire v Rogers, (1979) 39 FLR 106, by

Justice Deane, the last paragraph on page 113:

The question whether an application for

adjournment of a matter should be granted or refused is a matter within the discretion of the trial judge to be resolved according to

the overall requirements of justice in the

particular circumstances. Its resolution may

involve the assessment of competing claims by

litigants in other cases awaiting hearing in

the list of the particular judge or the
particular court and may require knowledge of
the working of the listing system of the
particular court or judge and the importance
in the proper working of that system of

adherence to dates fixed for hearing.

Sali(3) 26 7/9/93

Your Honours, I draw attention to that passage to

indicate two things. One is the wider

considerations that are taken into account in other than just looking at the litigants themselves; and

secondly, that it does involve, and perfectly

permissible for it to involve the court itself

informing itself about its own procedures and

listing requirements.

In other words, what I am submitting to the

Court is that it is not impermissible for a

court - in this case the Full Court - to have a

look outside any affidavit material as to the

circumstances that arise in its listing

requirements or how it is conducting its case. Nor

is it impermissible for a court to draw inferences
having regard to an application that is made before

it about the unavailability of counsel.

TOOHEY J:  Do you accept that this was the only appeal

listed for that week? I ask you that because there is reference somewhere - I think it might have been

the note from the listing master - which suggested

that three days from the week had been set aside,

from which you might infer that something else had

been listed for the other days. But there is also
a reference which suggests that it was the only

matter listed.

MR MIDDLETON:  I think my learned friend relied upon, at

page 70, the second full paragraph of Mr Justice

Marks where he said:

The Court allocated the time for the hearing

of the appeal and did not fix any other case

to be heard this week.

TOOHEY J:	You must proceed on that footing.
MR MIDDLETON:	I proceed on the basis that is correct.

Your Honour, can I just take up that point because

it does not advance my learned friend as my learned

friend would seek to have it advance his case, in
my respectful submission.	What was applied for is

an adjournment for a week or so, or two weeks.

Whatever would have occurred at the time of that

application, that could not have proceeded on that

basis in that week which was allocated. A week or

so is beyond, by definition, or two weeks, beyond

that week.

So the court, when the application was made in

the morning, was looking at it on the basis that it

would go off at a time - it would not have been

heard next week. The court knew its own listing.

In all probability it would have gone off to

another time next year. We are talking about

Sali(3) 27 7/9/93

November, December, Christmas, then you have the

January break.	The court is familiar with all
these matters.	It is an example of how this Court,

with the greatest of respect, should be careful

about superimposing upon what has occurred in a

discretion exercise, with all that background

information the Full Court has before it about its

own listing, how this would affect not only the

administration of justice and how the courts are

going to hear matters, but also the justice between

the parties, because the court will have some idea

of how long the adjournment is going to be because

it will know when it will be able to hear the

matter next.

TOOHEY J:  I see the force of that, but that tends to

overlook what is the second basis, or the second

order that is the subject of appeal, namely the
order refusing an adjournment until 2.15 and that

is in a different category, is it not, because that

is not surrounded by the uncertainty and those

other considerations of which you speak?

MR MIDDLETON:  It is in a different category and I accept

that, Your Honour, but it is very important to

determine exactly what had occurred. There had

been an application made upon the basis of which

has already been outlined by my learned friend,

Mr Finkelstein, and emphasized by myself. That

application is unsuccessful, an application made by

counsel specially retained for making the

adjournment application, no explanation for why
Mr Murdoch was not present, because you may recall

Mr Murdoch was said to have been available to make

the application on the Monday. That did not

happen. He was not there. Mr Bean was not present

because he was engaged, according to the affidavit,

somewhere else.	So you had a special junior
barrister making the application.	The application
is unsuccessful.

He then immediately is instructed to make an

application to see if counsel is available, having

already told the court that - not able to proceed
for a week or so or two weeks, to see if his
counsel available and to come again that afternoon

at 2.15, not to start a week later, or not to start

any other time, and on that basis the court is

entirely justified, in my respectful submission, in

acting in the way it did, and to refuse that

application as realy an attempt to somehow retrieve

the situation to an application which had no basis

at all.

What has to be done and what my learned

friends, in our respectful submission, ignore is

that a court can only deal with an application on

Sali(3) 28 7/9/93

the material before it. It is not for the court to
mend the applicant's hand; it is not for the court

to, in many cases, suggest appropriate diverse

orders. To say to Mr Jones, who I think was the

barrister appearing, "Well, we can massage a number

of orders so that your clients are somehow

protected." In fact His Honour Mr Justice Marks

was very careful to invite the applicant - his

barrister at the time - if he wanted to make any

further comments in relation to that particular

matter. If one has a look at page 83,

paragraph 11:

The Court invited Mr Jones to make any other

application that he wished to make. It

invited him to say whether there were any

other things that he wished to say.	He said
there were not.

TOOHEY J: There was not a lot left for him at that stage,

was there?

MR MIDDLETON: 

Your Honour, I am answering what my learned

friend now comes up with with suggestions as to how
the court could have dealt with the matter in a

discretionary way.

TOOHEY J: But that is probably only relevant to the

application to stand the matter down to 2.15.

MR MIDDLETON: Well, both, Your Honour, in my respectful

submission, on the first application.

TOOHEY J: Perhaps I should say my question was really only

directed at the application to stand it down to

2.15, not at some wider range of orders that might

have been made to cater for the situation.

MR MIDDLETON:  Your Honour, if the position of the applicant

was as first stated in the first adjournment

application, it would have been futile to have

adjourned the matter to 2.15.	The applicant made
his application on the basis of the material before

the court. In our respectful submission, the

applicant cannot have it both ways - cannot have

one bite of the cherry:  "See how the court feels,

and let us see if we are in luck and we get our

adjournment application, and if we are not in luck

and we do not get our adjournment application, we

will try a different tack", which is necessarily

inconsistent with the previous application.

What my learned friends are really asking you

to do is say that a gross injustice has occurred

here on the basis of trying to supplement, and in

some way suggest different ways out of what was

confronted before that court at the particular

Sali(3) 29 7/9/93

time. What the court did was based upon the

material, based upon what barrister said at the

time before him, and clearly His Honour

Mr Justice Marks thought that what he was dealing

with was a present application - this is at least

the first application - on the inability on the

part of the appellant to obtain the services of

senior counsel. As we have said in our outlines to

Your Honours, is that itself, we ask rhetorically,

to be a basis for an adjournment application

without further material to indicate other

circumstances? We would say, put in that form, the

answer is "no" .

There are a number of ways of supporting the

Full Court decision, and we have set those out in

our outline of argument, in paragraph 4. Of an

important and significant matter is, of course, the
expectation of the parties and the expectation of
the parties, that is, the litigants, was clearly

that the matter would be required to proceed on the

Monday. That was clear by the listing master's

communication, clear by the associate to

Mr Justice Marks' communication, clear by the

attitude of the first respondent, at least, where

the first respondent communicated with the

appellant and said, "We will be opposing any

application for adjournment". So, it must have

been, in the mind of the appellant, clear that a

fight was going to be mounted against any

application for an adjournment on the Monday. And

they should have expected to put proper material in
support of it.

We do not shy away from supporting what the Full Court, including what His Honour

Mr Justice Tadgell said, that is was humbug, the

application, and in all the circumstances, with the

three members of the Victorian Supreme Court

knowing of the background, a perfectly justifiable

conclusion, and one in which, if that is accepted

or wrong, bu.t whether it is open to them, then, in	as being open to them, and not whether it is right	our respectful submission, the appellant's argument
must fail.

GAUDRON J:  What do you mean, it is open to them? I have

some difficulty with that notion. Even if you did

not accept the affidavit at face value, there was

no cross-examination of it. It is not at all clear

why it was not allowed to be filed, one almost

feels it was so that there could be no

cross-examination. You were dealing with an

officer of the court, the deponent, the solicitor,

in respect of whom you are making a very serious finding and, indeed, in circumstances which went

directly to his professional integrity and, I

Sali(3) 30 7/9/93

would have thought, was prejudicial to his

professional standing. Findings which you would

not ordinarily make merely on the basis of an

impression from the reading of an affidavit, albeit

an impression reinforced by your knowledge of the

profession in Melbourne.

MR MIDDLETON:  Could I answer that in a number of ways? My

learned friend, Mr Finkelstein, for the purposes of

his application, of course puts much stress upon

this so-called finding of deceit and finding that

it misled the court. We, in our submission, would

say that the Full Court has taken a number of

matters in consideration. It is not pivotal to

their decision, in our respectful submission, that

there has been deceit or been misbehaviour on

behalf of the officer - - -

GAUDRON J: Well, let us assume humbug.

MR MIDDLETON: Well, humbug does not necessarily mean that

there has been deceit or misconduct of a

professional nature. Your Honour referred to me

the fact that he is an officer of the court, which

he is an officer of the court, he is the solicitor

of the court, but my learned friend jumps too

readily, we would say in our submission, from the

humbug, which is the way in which the application

was put, and the material in support of it to say,

look this is just nonsense, that cannot be the

case, to then say, well this is deceit and we just

do not believe on oath what you are saying. The

court may have said, you just have not got the

material here, and this is humbug on the basis that

there is just not enough evidence and not enough

justification for what we are doing. That is the

first thing I would say in response to what

Your Honour has put to me.

The second thing is that my learned friend

said this a number of times and if he says it a

number of times has to demonstrate there is a gross

misjustice. Now, the gross misjustice is not in

how necessarily the applicant was treated on the

day, but the gross misjustice here is the question

that an adjournment was not granted. That is the

gross misjustice my learned friend is complaining

about, on the material before the Court. There are

two different matters; one is what is dealt with on

the day as far as procedural matters, and the

second matter is, as you are being asked to look at

it now, to look back and say whether or not an

adjournment should be been granted, and that is

where my learned friend has to go. He has to say

that on the material before the Full Court it was

bound to grant an adjournment, and in our

submission - - -

Sali(3)	31	7/9/93
GAUDRON J:	I am not too sure that that is right.	He has to

show that there must be an error in their approach.

MR MIDDLETON: Well, with the greatest respect, there are

two aspects which my learned friend has put; one is

he can attack the discretions and say, "Well, there

are five considerations they should have taken into

account. They took in one consideration which is

relevant; they took in four which are irrelevant."

That is one way of looking at the discretion. But

his special leave application - and we anticipate

the reason for special leave being granted and the

way in which my learned friend put it, was there

was a gross miscarriage of justice. Now, that is

looking at the end result. That is looking at

the - - -

GAUDRON J: That is looking at the question whether special

leave should be granted notwithstanding that the

principles are well settled. One would not think

that any great question of law is raised by this.

MR MIDDLETON:  I think we are in heated agreement. There is

no great important question of law involved, and

that is why I say that special leave was granted

only because, in our respectful submission - - -

GAUDRON J: But there would be a miscarriage of justice if

there were an error in the reasoning process which

resulted in the appellant being shut out from the

Court of Appeal.

MR MIDDLETON:  My response to that would be, if there is an

error in the process that one matter is taken into

account which, perhaps, was peripheral, or should

not have been taken into account but, nevertheless,

at the end of the day you are satisfied that

justice was done, that an adjournment should not

have been granted, then this appeal should be

dismissed, and that is what Mr Finkelstein was

mainly putting in his case, that it is completely

wrong to not allow an adjournment because of the
consequences.	And he used the word "consequences"
a number of times.	He looks at the consequence of
what occurred.	He says, "Ha ha, that is the end of

it, a mistake has been made". That cannot be

right.

BRENNAN J:  Mr Middleton, can I interrupt you just for a moment to mention the matter of David Securities.

AT 3.13 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

Sali(3) 32 7/9/93

UPON RESUMING AT 3.17 PM:

BRENNAN J:  We will now return to where we interrupted you,

Mr Middleton.

MR MIDDLETON:  I had referred the Court to Squire v Rogers,

and I apologize, I understand Your Honours would

have had the Federal Law Reports and the reference

was to page 113 to 114 of the Federal Law Reports,

39 FLR 106, the relevant passage I refer to is at

page 113 to 114. There are only a few matters I

wish to draw the attention of the Court to. I have

alluded to this and it is clear at page 58 of the

appeal book in the affidavit which was sworn on

behalf of the applicant at the time that Mr Murdoch

in paragraph 6:

said he was prepared to take this matter on

and make any necessary applications on Monday

but could not commence preparation before

Sunday 29th November 1992 as he was involved in another Full Court matter.

I think it has already been mentioned, the inconsistency between the fact of withdrawing and preparation. But it is said there that Mr Murdoch

would be there to make any necessary applications

on Monday and he did not appear, not did junior

counsel appear.

Finally, I would not want it to be said in my

response to Justice Gaudron that we concede that in

fact the Full Court did take into account any

irrelevant considerations. We submit that the

Court took into account relevant considerations, such as the Court administrations, such as the

question of costs, such as the question of what was

before the Court as far as the application was

concerned, take into account the length of

preparation required for an appeal. It is quite a

different matter an appeal and a trial and one

would have thought on the basis of the appeal and

what was involved in the appeal the length of time

allowed was permissible and, for the basis on which

I have answered before, the comment of Mr Justice

Tadgell was humbug, was a perfectly permissible

inference to be drawn on the basis of the material

before him.

GAUDRON J: Those considerations, though, have exactly the

same weight in the second application for the 2.15

adjournment. That is the difficulty. There are no

reasons assigned, really, for dismissing that

application.

Sali(3) 33 7/9/93

MR MIDDLETON: Well, Your Honour, in relation to the second

application, it cannot be divorced from a

consideration of the first application having just

been made before the second application, by very

definition, and you incorporate those
considerations, in our respectful submission, are

relevant, where you have application made on one

basis five minutes before you have a second

application which is inconsistent with that earlier

basis.

GAUDRON J:	I do not see that inconsistency.
MR MIDDLETON:	The inconsistency is, one is that the

application is made because counsel is not going to

be available, we cannot get them for a week or

two - - -

GAUDRON J: They have not got them.

MR MIDDLETON:  They have not got them. Or Mr Murdoch, on

one version, is to be available that Monday but

somehow does not appear. Then, well, we will have

another bite of the cherry, let us see if we can,

although we have told you we cannot get the

counsel.

McHUGH J: Except it was prefaced by a condition: having

regard to the matters put before the Court today as
to the availability of counsel. In other words,

Mr Jones seems to be saying, "Well, we have put our submission about counsel and it has been rejected,

however I am instructed to make a further

application having regard to what the respondents

have said about the availability of counsel."

MR MIDDLETON:  We say you do not divorce the two

applications in the way in which my learned friend

has.	They really are to be seen in the background
of each other.	One cannot say that one looks at

the second application as a completely fresh

application made without taking into account what

is said in relation to the other. If that is

accepted then, in our respectful submission, that

application must also fall because the way in which

my learned friends have said it is there has to be

a gross injustice, which, in our respectful

submission, could not be said.

I do not believe there is any further matters

I need to address the Court. If the Court pleases,

they are our submissions.

BRENNAN J: Thank you, Mr Middleton. Mr Cawthorn.

MR CAWTHORN:  Could I hand to the Court my outline of

argument.

Sali(3) 34 7/9/93

BRENNAN J: Yes, Mr Cawthorn.

MR CAWTHORN: If the Court please, I, with respect, adopt

the submissions of my learned friend, Mr Middleton,

and as well as the submissions I make in my written

submissions, might I say this: in my respectful

submission, there was no explanation as to why and
with respect to what steps were taken regarding the

engagement of junior counsel for the appeal. It

was, in my respectful submission, a matter that

could have been conducted by junior counsel. It

does appear that junior counsel had been engaged,

but he was not present on the Monday. He had been
briefed, according to the affidavit of Ms Hibberd,

and at paragraph 9 she says that.	She says "he was
otherwise engaged today."

Mr Bean, who is the counsel referred to there,

was counsel who had appeared at the trial and so

much is evidence from the judgment at page 49 of

the appeal book. Now, there is no explanation

given as to why - the Court will see that the

attendance was with Dr Jessup and Mr Bean. There

is no explanation given as to why he was not

present on the Monday and if the application is put
on the basis that the appellant could not obtain
the services of counsel when he could obtain the

services of junior counsel - he had a junior

counsel - and in my respectful submission, it

really was not an adequate basis at all to suggest

that an adjournment ought be granted where there

was a junior counsel engaged, but that the services

of senior counsel were not available.

The second thing I wish to say was that the

letter that was sent on the Thursday - the

handwritten letter which is exhibit 5 to Mr Fice's
affidavit - promised that an application would be
made to the Full Court "tomorrow morning". It said

that in light of Mr Murdoch's withdrawal, "We shall

apply for an adjournment for some time in December

to allow us to proceed.	The application will be
made to the Full Court tomorrow morning". But, in

fact the application was not made on the Friday,

and so much appears from Mr Fice's affidavit at

page 64 of the appeal book. He says:

I attended Court with counsel on the morning of 27 November, 1992 only to be informed that

the application would not in fact be heard on

that day but that an application would be made

to the Full Court at 10.00 am on

30 November 1992.

It is not said any steps were taken to endeavour to

bring on the application on the Friday.	Now, the
result of - - -

Sali(3) 35 7/9/93

TOOHEY J:  Can I ask you what inference you invite us to

draw about that paragraph, Mr Cawthorn? I must

say, I have the impression that it was the court's

initiative that precluded the application from

being brought on on the Friday, but that may be a

misunderstanding.

MR CAWTHORN:  Yes, I am not certain whether that is the case

or not, but certainly there was not a formal

application made. By Thursday night the appellant

knew that he did not have the services of

Mr Murdoch; he had withdrawn.	So he had a junior
counsel.	The junior counsel could not be here on
the Monday.	He did not bring on a summons, which
he could have brought on on the Friday.	Now, my

submission is that if he had made an application;

endeavoured to bring it on as a matter or urgency,

then he may well have been able to persuade the

court, but no application was in fact made.

McHUGH J: Yes, at page 75 Mr Justice Marks says, about

line 20:

There was no order on Friday and there

was no appearance for us to make an order

about.

That statement followed some sort of discussion

which seems to have - - -

MR CAWTHORN:  I think the discussion was about - - -

McHUGH J: About your side turning up, I suppose.

MR CAWTHORN: Turning up, and no application being made; no

one being present to prosecute any application.

There was a Full Court convened for motions day, as

my learned friend, Mr Finkelstein, pointed out, on

the Friday. Our side anticipated there would be an

application in light of the facsimile sent on the

Thursday night, but there was no one there to make

was hearing motions, interlocutory motions, in the the application, no summons. It was a court which appellate division.

DEANE J: Well, were you there on the Friday?

MR CAWTHORN:	Yes.
DEANE J:	You were there just waiting?

MR CAWTHORN: Just waiting for something to happen, for

somebody to come - - -

DEANE J:  And nobody told you that nothing was going to

happen?

Sali(3) 36 7/9/93

MR CAWTHORN:  I waited for some time in the morning, and

then it was obvious that nothing was to happen.	I
should say that counsel engaged by the first respondent was there as well.

TOOHEY J: Is there a printed list of matters, Mr Cawthorn,. or are counsel at liberty to make applications ex

tempore, as it were?

MR CAWTHORN: Applications are bought on by summons. There

is a printed list but it is reserved for urgent

applications in the appeal division. Applications

are there dealt with where, for example, if there

is a refusal of an interlocutory injunction, an

application of an urgent nature can be brought to

the appeal division, and is commonly brought in

that sitting and, in light of the facsimile sent on
the Thursday, it was anticipated there would be

such an application. There was some suggestion, as

I recall, that steps would be taken to convene the

court that was to sit on the Monday, but that did

not happen. Now, all I make of that is that there

was no formal application made. If the summons had

been issued and presented to the court, the court

may have had to deal with it on that Friday.

The next point I wish to make is that there

really is no explanation as to what happened

between the Thursday afternoon and the Monday

morning. By Thursday evening when that facsimile

was sent, the appellant knew that he did not have

the services of Mr Murdoch. In my submission, that

is clear from the facts as put on the basis that

Mr Murdoch had withdrawn, and it is confirmed by

the comments of counsel who appeared, by us, by the

fact that he asked for a two week adjournment.

Now, if Mr Murdoch's services were still retained, and his difficulty was, "Well, look, I may be part

heard on the Monday", then the application in the

first instance ought to have been put on the basis

of Mr Murdoch's absence of availability. Because

we do not have a transcript we do not know - the

Court cannot see precisely what was put - but it is

apparent from Ms Hibberd's affidavit that the
absence of Mr Murdoch was not at the forefront and,

indeed, does not seem to have been mentioned by

Mr Jones, although it is referred to in the

affidavit.

Now, that fact is confirmed by the fact that

the application Mr Jones then made for the matter
to be stood down till 2.15 was on the basis of the

matters then put before the court, which is that we

now see from an affidavit filed by the second

respondent that there are a number of counsel

available, we will try and get their services. If

Mr Murdoch had been briefed, then that application

Sali(3) 37 7/9/93

would have been put, I'll go back to Mr Murdoch's

chambers, see if he is free, and see if he can

start tomorrow. But none of that was put.

There really, in my submission, is no

explanation as to what happened between the

Thursday afternoon and the Monday morning. In the

course of argument, Mr Jones was asked, and this

appears at page 83 of the application book,

point 11: he made the submission that the

adjournment be granted for two weeks and he was

invited to make any other application he wished to

make. Now, that was the time when, for whatever

reason, he did not ask that the matter be stood

down till 2.15.

He was then invited to say whether there was

anything else he wished to say, and he said there

was not. Now, one might have anticipated that if

he had then said, well, I wish the matter to be

stood down, but rather he waited to see the outcome

of his application and, having put all his eggs in

one basket, and if I could adopt what was said on

the day by counsel for the first respondent, it

really suggested, even more strongly, that he could

have taken measures earlier to engage counsel. He

made an application, counsel was engaged solely for

the purpose of the application, at the eleventh

hour, please apply for an adjournment, and having

made his application, he endeavoured to salvage

what he could from the wreck.

Not only does it suggest that counsel could

have been obtained at an earlier, but that the

court was being treated on the basis, I will make
an application, if that is not successful then I

will make another application, and so on to

infinity.	And that is really not a proper way to
proceed.

Mr Finkelstein said that the court should have

stood the matter down until the Wednesday of that

week. Well, that was not asked for and certainly the application was not put on that basis.

If the Court pleases, those are the

submissions that I wish to make and I adopt the

submissions of Mr Middleton. If the Court pleases.

BRENNAN J:	Thank you, Mr Cawthorn.	Mr Finkelstein?
MR FINKELSTEIN:	One explanation, two short points.	The

explanation relates to what happened before the presided, his associate was approached to have the

application for adjournment listed and dealt with

by the Full Court on motions day on Friday, and

Sali(3) 38 7/9/93

His Honour's associate advised our instructing solicitors that the Full Court would not deal with

it on the Friday, but would deal with it at

10 o'clock Monday morning. That is why nothing

happened on the Friday and something did happen at

10 am on Monday. It was listed for argument then

because that is when the court wanted the
application to be dealt with. That is the

explanation, and I am instructed for what it is

worth - and this was all communicated through

Justice Marks' associate - that as soon as that was made known to our instructors, they then by phone

contacted the other solicitors. They did not have

anybody in court to do that, but did it through

counsel's solicitors.

"Humbug" - I looked it up in the Oxford

Dictionary and it says deceitful. The basis of the

rejection of the application for adjournment was
that the court perceived the application to be

"humbug", to be "deceptive". There might be another meaning of the word, but that is the

primary meaning of the word according to the latest

Oxford Dictionary.

The question about substantial prejudice is

based on what the High Court accepted in Bloch's

case as being the correct statement of principle

from Maxwell v Keun, and that is, if a party's

rights are defeated altogether, then that could
constitute a serious injustice or gross injustice
as opposed to some partial interference or lesser
interference, but it is the defeating of rights

altogether which gives rise to the gross injustice.

Of course, it will not be a gross injustice if

the party brings it wholly, fairly and squarely

upon himself, such as if you are tempted to deceive

the court, or said, "I don't really care about this

litigation; I'll just let it rest", and then the

day before the day of the appeal says, "Oh well, I

have changed my mind and I might want to give it a

run".

There is one case on successive applications for adjournments, a Victorian case, Reg v McGill,

(1967) VR 683. I will take the Court to the

decision. They were prosecution proceedings at a court of summary jurisdiction - it must have been the local magistrates court - where counsel for an

accused person on a criminal charge sought an
adjournment for a while - that was refused - and

then a very short adjournment to obtain

instructions so they could properly conduct the

defence. That was also refused. Appeal was

brought to the Full Court on the basis of the

second refusal, not the first. The parties must

Sali(3) 39 7/9/93

have accepted that the first refusal could not be

challenged. The second refusal was said to be bad.

It is a joint judgment of the Full Court, the then

Chief Justice, Sir Henry Winneke, and Justices Lush

and Little at page 685 between lines 40 and 48.

It is because the appellant's rights were

defeated altogether in circumstances which did not

warrant it, especially the application to adjourn

till 2.15, where everybody's problems may have been

sorted out by the next day. If they had come back

at 2.15 without a good reason or they had come back

on the next day and said, "Look, we need another

adjournment, we need more time, we need another

week", maybe the court should not have granted it

at that time. That would have depended on what

would have happened overnight, but it should not

have happened,on the morning of the 30th when what

was asked for then was half a day or a day.	May it
please the Court.

BRENNAN J:  Thank you, Mr Finkelstein. The Court will

consider its decision in this matter.

AT 3.40 PM THE MATTER WAS ADJOURNED SINE DIE

Sali(3) 40 7/9/93