Sali v SPC Limited

[1993] HCATrans 81

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M124 of 1992

B e t w e e n -

HASET SALI

Applicant

and

SPC LIMITED and BLAKE DAWSON

WALDRON

Respondents

Application for special

leave to appeal

BRENNAN J

TOOHEY J

Sali(2) 1 18/3/93

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT HOBART ON THURSDAY, 18 MARCH 1993, AT 9.37 AM

Copyright in the High Court of Australia

MR R.A. FINKELSTEIN:  May it please the Court, I appear with

my learned friend, MRS. KEMPTON, for the

applicant. {instructed by McLindins)

MR P.J. RIORDAN:  If the Court pleases, I appear on behalf

of the respondents. {instructed by Phillips Fox)

BRENNAN J: Yes, thank you, Mr Riordan. Yes,

Mr Finkelstein.

MR FINKELSTEIN:  If the Court pleases. The applicant was

plaintiff in a suit commenced in the Supreme Court

seeking retirement benefits which was said his

employing company had agreed to pay. The case was

dealt with by Mr Justice Ormiston, and His Honour

delivered judgment on 1 November 1991, dismissing

the plaintiff's suit and ordering the plaintiff to

pay costs. The claim that was brought was not only

against the employing company, but also against a

firm of solicitors, who were the second defendant

in the proceedings, claiming that the company

through its directors, the plaintiff being one of them, had sought legal advice from the firm about

how the company could properly pay a retirement

benefit to its directors and that, in the course of

giving advice on that question, the solicitors had

not properly advised the company how to go about

giving - - -

BRENNAN J: You can take it the Court has read the

application book, Mr Finkelstein.

MR FINKELSTEIN:  May it please the Court. Can I hand to the

Court then, a bundle of documents which contains a

short outline of argument and some additional

documents which the Court does not have, including

two authorities - - -

BRENNAN J:  It might be desirable, before you hand that up

to identify precisely what we do have in terms of

the material that was before the Full Court.

MR FINKELSTEIN:  I understand that. The importance of

handing the bundle of documents to Your Honour

covers one significant point.

BRENNAN J: Yes, very well.

MR FINKELSTEIN: There is a short affidavit in the bundle

which is sworn by counsel who appeared for the

applicant before the Full Court on the occasion

when the adjournment was sought. And what counsel

says in that affidavit is that the affidavit which

appears in the application book at page 89 and

following, which is an affidavit of Mr McLindin,

was tendered to the Full Court. Now, that is

Sali{3) 2 18/3/93

obviously of importance and Your Honour the

presiding judge raised that matter on the occasion

when the applicant sought a stay of the orders of

the Full Court of Victoria and counsel who then

appeared for the applicant was under the impression

that the affidavit, which is at page 89 and
following, had not been tendered, but that merely

the Full Court was informed of facts by counsel

from the bar table. That is not so, and there is a

further affidavit which was recently sworn by

Heather Jane Hibberd, and presumably filed with the

Court. It is an affidavit that was sworn on

12 March 1993, which also makes clear that the

affidavit - - -

TOOHEY J:  Mr Finkelstein, when you said the affidavit by

counsel was tendered, you mean tendered and

received by the court?

MR FINKELSTEIN:  Tendered and read by counsel to the court.

TOOHEY J: Thank you.

MR FINKELSTEIN:  And that is why I was referring to the

recent affidavit of Ms Hibberd, because in her

affidavit she relates what transpired before the

Full Court and in her affidavit in paragraph 6 - I appreciate that all the papers are a bit of a

jumble, but - - -

TOOHEY J:  It is not that so much; well, that is part of the

problem, but the other problem seems to be that we

do not have that document.

MR FINKELSTEIN: Well, it is not an affidavit that we

produced and we were served with a copy of the

affidavit and I am rather surprised that it is not

before the Court, because I made the assumption
because it has been served on us it would have been

filed with the Court.

BRENNAN J: Well, I have certainly seen it before when I sat

in an interlocutory application. I must say that I

cannot quite put my hand on it at the moment,
although it is - perhaps Mr Riordan may be able to

provide us with a copy, would you not think?

MR RIORDAN:	Your Honour, I am unable to provide you with copies - I have not got a copy of the affidavit to
which my learned friend refers.  Your Honour,
though, I might be able to assist in one regard.
The affidavit to which Your Honour refers, that you
had seen on a previous occasion, is an affidavit of Heather Hibberd sworn on 27 November, which was
before the Full Court of the Supreme Court at the
time when the orders were made.  I think my learned
friend is referring to a later affidavit -

Sali(3)	3	18/3/93
MR FINKELSTEIN: Yes.

MR RIORDAN:  - - - which in fact I have not been briefed

with a copy of it, so I am unable to assist.	I
apologize for that, Your Honour.

MR FINKELSTEIN:  I did not realize that the Court did not

have it. The affidavit was prepared by the

solicitors who acted for the second defendant,

Blake Dawson Waldron, in the suit,

Messrs Minter Ellison, and we were served with this on Friday last and it sets out a history - Hibberd

is a solicitor and she was present in court when

the application for adjournment was raised with the

Full Court and she sets out a history of what

transpired according to her recollection, bearing

in mind, and the problem is that in applications of

this type before the Full Court, the Full Court

does not take a transcript; they call recorders to

court when the court has heard argument and is

about to deliver judgment. It is not the practise

on interlocutory applications before the Full Court

in Victoria to have the argument recorded.

BRENNAN J: Well, the difficulty is that if _this was filed

on Friday, it certainly is not here.

MR FINKELSTEIN: Yes. Well, can I do it this way; there are

a few short points that are very relevant and if I

could tell the Court what the affidavit says

briefly and then I will get my instructing

solicitor to go out and make multiple copies of the

affidavit so that I can hand it up to the Court.

BRENNAN J: Yes.

MR FINKELSTEIN:  What Ms Hibberd says in paragraph 6 of her

affidavit -

BRENNAN J: Perhaps, before you proceed, I should ask

Mr Riordan - do you have any objection to this

course, Mr Riordan?

MR RIORDAN:  Not having seen the affidavit, Your Honour, I

would like to reserve my position in that regard.

BRENNAN J: But it is your affidavit, is it not?

MR RIORDAN:  So I am told, but only by my learned friend,

Your Honour. I have not been briefed with it and

have not had the opportunity to read it.

BRENNAN J:	You better show it to Mr Riordan now.
MR FINKELSTEIN:	I will.
Sali(3)	18/3/93

MR RIORDAN:  Thank you for that indulgence. I have no

objection to that course being adopted.

BRENNAN J: Yes, very well.

MR FINKELSTEIN:  The Court might recall that Mr Jones was

counsel who appeared for the applicant before the

Full Court. In paragraph 4 of Ms Hibberd's

affidavit it said that Mr Jones informed the court

that he was asking for a two week adjournment. He

referred to McLindin's affidavit, which is the one
that appears at page 89 of the application book.

Mr Justice Marks commented that the affidavit had

not reached the judges, which was correct because

it had not been filed, but counsel said he thought

the affidavit had been filed on the previous

Friday. The Court will recall that the application

came on for hearing on Monday morning at

10 o'clock - the ordinary starting time for the

list was 10.30 am, the application for adjournment

was listed at 10 o'clock in the morning. And then
there was discussion about whether counsel should

be permitted to read the affidavit and then after

that discussion, according to paragraph 6 of the

affidavit:

Mr Jones then read out the affidavit which had

apparently not been filed with the Court.

Leave to file ..... was not granted but

Mr Jones read its contents out to the Court.

And then he said that senior counsel:

had been engaged in September or October, 1992

but he could not recall the exact date or if a

backsheet had been delivered. He said that -

senior counsel -

needed at least three months notice to appear

and was not available until February, 1993.

Then, it is apparent from Ms Hibberd's recent

affidavit that the members of the Full Court,
especially Mr Justice Marks, indicated pretty

quickly that they did not like the application,

Mr Justice Marks saying that he was of the opinion

that the applicant was "playing for time", a quote

from paragraph 7 of the affidavit.	And then in
paragraph 8 of the affidavit:

Mr Justice Marks said that the bench had heard that barristers were short of

work ..... although he was not sure that

judicial notice could be taken of that.

Sali(3) 5 18/3/93

The question of costs was not unimportant, because it was one of the points that was raised

against the argument that the respondents to the
application in the Full Court would not suffer an

injustice. Mr Jones counsel said that the

applicant had made arrangements for members of his

family to pay any costs of an adjournment. Now,

that is important in the context of an application

being made for an adjournment of two weeks if - it

is not unusual; it happens often enough if the

court is concerned about the ability of a party to

pay costs, especially the costs of an adjournment,

to impose a condition that the money be paid to the

court or to the other side, that is, the party

entitled to costs, within a relatively short period

of time, say 24 hours or some such, and if the

money is not paid, then consequences flow like, for

example, appeal dismissed. But the importance is

that one of the grounds that the Full Court looked

at was the impecuniosity or apparent impecuniosity

of the plaintiff applicant.

The affidavit in paragraph 10 then says that

counsel for the applicant told the Full Court that:

Murdoch, QC had all the papers -

with him - that is relevant because that counsel's

name is mentioned in the affidavit itself so, by

way of further explanation to what appears in the

affidavit that had just been read, that counsel had

the papers - and then it deals with the opposition
to the application in paragraph 12, the point being

made by counsel for one of the respondents that

prejudice would be occasioned:

because an order for costs would be unlikely

to be satisfied because evidence had been

given by Mr Sali of his impecuniosity. That appears in paragraph 12 of the affidavit, and

it also says that in dealing with the application,

counsel said the court should consider, as it

tentatively did, the likely success of the appeal.

It also says in paragraph 13 that counsel for

the respondents filed another one of the affidavits
which, I think, does not appear in the application

book, but appears in the separate bundle which is

another affidavit of Ms Hibberd, where she refers

to - this is an affidavit sworn on 27 November

1992, and I think this is the one that Your Honour

the learned presiding judge was referring to as

being before Your Honour on the stay application.

BRENNAN J:  I think it is exhibit EFHC2, to the affidavit of

Mr Fice on 5 March.

Sali(3) 6 18/3/93

MR FINKELSTEIN: That is the one, Your Honour, yes. That

affidavit was clearly before the Full Court.

BRENNAN J: That is this affidavit of Ms Hibberd of

27 November?

MR FINKELSTEIN:	Yes.
BRENNAN J:	I think we have that.

MR FINKELSTEIN:  Thank you, Your Honour. And I think

another affidavit, which is the first exhibit to

Mr Fice's affidavit, that is an affidavit by
Mr Fice himself sworn 27 November 1992 - it is the

first exhibit to his affidavit of 5 March.

TOOHEY J:	Mr Fice's affidavit of 27 November?
MR FINKELSTEIN:	Yes.

TOOHEY J: That was before the Full Court.

MR FINKELSTEIN: Yes, so that the three - - -

TOOHEY J: Together with the exhibits, I take it, to that

affidavit?

MR FINKELSTEIN:  Yes, Your Honour. So that the three

affidavits that were before the court were

Mr Fice's affidavit that I have just referred to,

Ms Hibberd's affidavit of 27 November dealing with her conversations with barristers' clerks and

Mr McLindin's affidavit which, while it may or may

not have been filed formally with the court, was

read to the court and handed up. And I think,

having regard to Ms Hibberd's most recent

affidavit, that it is not a matter of dispute, but

common ground, that that is the material that was

before the court.

BRENNAN J:  Yes. Do do you want to hand up some

additional -

MR FINKELSTEIN:  Yes, I do. The last document in that

bundle is an affidavit of counsel who appeared for

the applicant and that really just confirms that

McLindin's affidavit was handed to the Court, so

that the Court does not have to be troubled with

that because that is now really common ground.

There are two cases and there is a short outline of

submissions and also there are three pages, and

they should appear in loose form - we only

discovered the problem late last night. They are

three pages of the judgment of the trial judge that

were omitted from the application book; that is the

application book does not set out the whole of the

judgment. Unfortunately we did not have available

Sali(3) 7 18/3/93

a clean copy of the judgment to photocopy, so the

best we could do was provide a marked copy. The

numbers at the top of the page correspond with the numbers in the application book which are missing.

Unless the Court happened to get the right one - counsel did not, ours have got - - -

TOOHEY J: Well, I certainly had the three pages in my

application book.

MR FINKELSTEIN:  Can I ask you to then -

TOOHEY J: Well, that is the luck of the draw.

MR FINKELSTEIN: It sounds like it. Well, if it is there

the extra pages can be discarded, otherwise - - -

BRENNAN J: Yes, Mr Finkelstein.

MR FINKELSTEIN: Although the Court has read the application

book, I do want to highlight some critical dates.

Until November 1992, the position was that the

appeal was likely to come on in the early months of

1993, probably February 1993, and counsel had been

retained for the appeal at that time on the

assumption that it would be called on for hearing

in February. Sometime between 13 November and

21 November, probably closer to the 13th than the

21st, the applicant was informed that the case

would be listed on 30 November, a Monday. Early on

the listing master was asked to vacate the date and

would not and it became clear by about 19 November

or thereabouts, because the listing master would

not vacate the hearing date, that the appeal would

be called on on the 30th.

What the affidavit material before the Full Court shows is that, from 21 November and

including that day, the applicant approached 25

senior counsel to appear on his behalf on the

appeal.

GAUDRON J:  Why do we not approach that affidavit on the

basis that it was not believed, which seems to be

absolutely implicit in the statement that it was

all humbug?

MR FINKELSTEIN: That is true and that was an impermissible

approach by the court to adopt.

GAUDRON J:	Why is that?
MR FINKELSTEIN:	Because the only challenge to the

material - well, what seems to have influenced the court was that, in the months before the case came

on for hearing, the applicant had made two

applications to stay the order of the trial judge -

Sali(3) 18/3/93

that part of the order that related to the payment

of costs. His claim had been dismissed, there was

an order for costs and costs were taxed and,

because of the threat of bankruptcy proceedings,

the applicant made applications to the court to

stay the operation of the order. Those

applications were granted directly or indirectly. One way or the other the supreme court stayed the operation of the order. In circumstances where the

applicant comes to the Full Court and says, "I do
not want an indefinite adjournment into the New

Year, but a relatively short adjournment to enable counsel to be engaged to undertake the appeal, but

not in circumstances where the application is being

made on the basis that we just want to still look
around for counsel, but on the basis that

particular counsel was available to do the case,

because of the commitment that that counsel had in

the preceding week" - bearing in mind this is

Monday morning. "Other counsel who had agreed to do

the case could not, because of commitments in the

previous week, prepare himself adequately for the

appeal, the application being then for a short

adjournment to allow named counsel adequate time to

read the material and prepare for the appeal."

Even if you did not ring 25 other counsel to see

whether they were available, the position was that

there was counsel available and all that that

counsel required was a short period of time to

prepare for the case.

The affidavit that was relied upon by the

respondents was that the clerks had been called

around and the clerks have said they have got

senior counsel available. It does not say that any

of the senior counsel were spoken to and it does

not say the background and experience in areas of

jurisdiction of the senior counsel. It is true,

and I accept what Your Honour says to me that what

the court was doing was saying, "I do not believe the material", but there was no justification for

the Full Court to say that.

If the material was going to be challenged as

to its truthfulness, then there are procedures to

do that. You call the deponent and you test his

evidence, but the court is not entitled willy-nilly

to reject the evidence of a lawyer on his oath - or

it does not make any difference whether he is a

lawyer or not. A court is not entitled to reject

willy-nilly evidence when it is not really

contradicted by any opposing material. What

McLindin's affidavit said was that counsel were

approached and a particular number of counsel.

What the affidavit relied on by the respondents

said was, clerks were approached. Now, there is no

Sali(3) 9 18/3/93

doubt that there would have been barristers at the

bar who were not working on the Monday.

BRENNAN J: But the actual terms of Mr McLindin's affidavit

is that, "After approaching all the barristers'

clerks and some 25 Queens Counsel, we were unable

to secure the services of counsel."

MR FINKELSTEIN:	Yes.
BRENNAN J:	Now, the affidavit of Ms Hibberd says that in

contacting four out of the 11 clerks, senior

counsel were found to be available.

MR FINKELSTEIN:  Yes, but there is no discrepancy between

those two statements. What McLindin's affidavit

says is that 25 counsel were approached directly.

I was not seeking to suggest that there was not a

barrister at the bar in Victoria or in any other

jurisdiction who was - I am putting it wrongly. It

was not the case that every barrister at the bar

was engaged in some other case on the Monday; that

is not the point. The point is that 25 senior

counsel were approached, none of them were

available, then a senior counsel was approached who

was available and needed a short period of time.

Now, what the Full Court implicitly rejected

was the statement that 25 senior counsel were

approached directly after discussion with clerks.

There is no justification for rejecting that

evidence. First of all, it is not contradicted in

any way, I mean, by any other affidavit material,

and there was no foundation available to the court

to disregard that statement on oath; it being an

uncontradicted statement on oath. Now, the case is

not that - I keep saying it, but it was not that

there was no other barrister available. After

approaching 25 senior counsel, the applicant did

find a senior counsel who was prepared to undertake

the case; all he needed was a bit of time.

BRENNAN J: Who was that? Mr Murdoch, is it?

MR FINKELSTEIN: That is Mr Murdoch, yes.

BRENNAN J:  Who said that on the 26th, was it, that he was

not available or he wanted more time?

MR FINKELSTEIN:  He needed time; he was finishing up another

case that week and because he was engaged to still

finish off another case he needed some time to

prepare for the appeal but was at least available.

BRENNAN J:  The proposition that you are advancing, I take

it then, is this, that if counsel has only a

weekend - was it a weekend and a day?

Sali(3)	10 MR FINKELSTEIN, QC	18/3/93
MR FINKELSTEIN:	No, just the weekend.	The case was going

to come on on Monday morning.

BRENNAN J:	Had the weekend to prepare this Full Court appeal and.asked for more time, then it was what, a
miscarriage of justice or a denial of natural
justice not to give it?
MR FINKELSTEIN:	I do not put it on the basis that counsel

required at least the weekend because the evidence

does not show that counsel had available to him the

weekend to undertake the preparation.

BRENNAN J: Whatever it might be, either counsel had the

weekend or he did not - - -

MR FINKELSTEIN: But, in any event, needed time.

BRENNAN J:	If counsel did not have the weekend available surely it is not a matter for counsel to say to the
solicitor on Monday morning, "I have not had the weekend, therefore go and ask for an adjournment".

MR FINKELSTEIN: No, I accept that, Your Honour. But it was

not put on the basis that counsel said that on

Monday morning.

BRENNAN J: Well, then, whenever this happened -

MR FINKELSTEIN: This happened on the Thursday.

BRENNAN J:  Then on the Thursday, either counsel knew that

he had from then until the Monday to prepare or he

did not.

MR FINKELSTEIN:  He knew on the Thursday that he could not

prepare the case for the Monday, and on Thursday

the respondents were informed, by a faxed

communication, that on Friday morning the applicant

would apply for an adjournment. That application

was not dealt with by the Full Court on Friday but
put over until Monday morning.	So that applicant

had counsel retained on Thursday, who was prepared

to undertake the case, after trying 25 counsel and,

obviously, had counsel who he was happy with after

trying the other 25.

BRENNAN J: But your proposition is based on the argument

that once counsel said on the Thursday that he

needs more time to prepare, that the fixture for

the following Monday had to be vacated in order to

give counsel time?

MR FINKELSTEIN: In isolation, put like that, no, that is

not our submission. The submission is that when

you have got a fortnight to find counsel and in

that fortnight you are rejected by 25 counsel and

Sali(3) 11 MR FINKELSTEIN, QC 18/3/93

then you finally find a counsel who can do the case
but not on the Monday, so, in effect, you have got

a twenty-sixth rejection, rather than, at that

stage, when you have got somebody who will do it

not on the Monday but shortly after the Monday,
then the rejection of an application for an

adjournment, in those circumstances, is a denial of

natural justice or an incorrect exercise of

discretion.

If Your Honour puts it to me on this basis:

If you have got a barrister on Thursday and he is

not ready on the Monday, in isolation, that

proposition does not stand.

BRENNAN J:	And what about the duty of the solicitor on the Friday morning to go and get a counsel, is there
one?
MR FINKELSTEIN:	What the applicant does know is he has got

25 and a half rejections, and a party to litigation

should not have to be put into a position where he must take whatever counsel happens to be available

and free for the day. That is wrong. He went to

25 counsel, one should assume counsel who practise

in the area in which this dispute relates. I said

earlier, more than once, that we are not saying

that no barrister could not have done the case at

all, but when you have a case in a particular area
you are entitled to go and look for counsel who are

familiar with the area of the law where you are

going to ask him to appear. And it is not a

problem, in isolation, of what happened on the

Thursday. It must be looked at in the context of obvious efforts to engage the services of counsel

appropriate for the case.

BRENNAN J:	And what is the special leave point?
MR FINKELSTEIN:	The special leave point is that the

decision of the Full Court is so wrong as to

produce a gross injustice. It is demonstrably

wrong to produce a gross injustice of a type that

brings the law into disrepute. It is not just the

refusal of a simple application for an adjournment

of some interlocutory application; by reason of the

refusal the applicant has lost his right to go to

the Full Court. That is a loss of a substantive

right, in circumstances where the application was

being made for a short time just sufficient to

enable counsel to prepare.

Now, that could not seriously cause any

inconvenience or prejudice to the respondents to

the application. It may have caused some, not very
significant, but some problems for the listings of

the Full Court, but the practice in Victoria and

Sali(3) 12 MR FINKELSTEIN, QC 18/3/93

probably in other States as well is, when the court

has vacant time they do - have in the past and

still do - call on short cases that are ready to

fill in any gap, so that if the court lost the

three days because members of the Full Court said,

"One of the reasons why we are not going to do it

is we have set aside three days and we are not

going to sit idle for that three day period", the

practice in Victoria is to call on cases, sometimes

they are called on on 24 hour notice or thereabouts

to fill in the gap, provided it is a short case and

parties are ready to proceed. But because of that

listing procedure parties in Victoria know that if

they are involved in a short case it could be

brought on. So, the gap in the court book - in the

court calendar - could have been filled. Even if

it was not, and even if it was not incapable of

being filled, the convenience of the court cannot

stand ahead of the rights of the parties to have

access to the courts, the rights of a party to
exercise his statutory right to go to an appellate

court in circumstances where no real injustice

could be occasioned to the respondents.

TOOHEY J:  Mr Finkelstein, you have spoken more than once of

a short adjournment. What was the precise

application on the Monday morning, the first

application, the one that was refused and which is

the subject of reasons.

MR FINKELSTEIN: According to Miss Hibberd's affidavit, a

copy of which has just been, I think, handed to the

Court, in paragraph 4, the first sentence describes

the application. It is not how the Full Court took

the application, however. It is not clear, but it

appears from a fair reading of Mr Justice Marks'

judgment that His Honour treated it as an

application for an adjournment to the following

year, because he condemned, in strong terms, the

suggestion that counsel needed three months to

prepare for the case.

TOOHEY J: What was the significance of two weeks, or did it

have any significance? I mean, it was not related

apparently to dates on which time was available for

the Full Court to hear the appeal. It seems to

have been related to a time that counsel might have

needed to prepare himself for the appeal.

MR FINKELSTEIN: Yes.

TOOHEY J: There is no magic in two weeks as opposed to some

other period.

MR FINKELSTEIN: No, there is not. It just appears from the

affidavit that that was the time sought.

Sali(3) 13 MR FINKELSTEIN, QC 18/3/93

BRENNAN J:  I see, Mr Finkelstein, this affidavit says that

Mr Justice Marks:

said that his associate had contacted the

solicitors for each party (including the

appellant) 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: Is that accepted?

MR FINKELSTEIN: Yes. Can I just make this observation to

Your Honour Mr Justice Toohey. McLindin's

affidavit, the affidavit itself that was read to

the Court asks for seven days not 14 days

adjournment. This is at page 90 of the application

book, paragraph 8 of the affidavit:

I now humbly request that this matter be

adjourned for a week or so.

Now, that might have

TOOHEY J:  I am sorry, I have not picked that up, what page?

MR FINKELSTEIN: Page 90 of the application book,

paragraph 8 of an affidavit, line 20 of the page.

Does Your Honour have that?

TOOHEY J: Yes. I am sorry, I thought you said seven days,

I was looking for some reference to that. It is a

reference to a week or so.

MR FINKELSTEIN:  A week, yes. Now, it is not clear why

Miss Hibberd says two weeks when the affidavit was

read and says a week or so. I am not suggesting

that counsel may not have said a week, up to two

weeks, in conformity with a week or so, but at
least the affidavit itself suggests a week.	And

the only magic in that was that the solicitors

believed, no doubt from what Mr Murdoch had told

the solicitors, that if he had a week that would

have been more than enough time, a week or so would

have been more than enough time for him to

adequately prepare for the appeal.

BRENNAN J: Is this the position: Thursday afternoon

Mr Murdoch says, "I have been in the Full Court.

I need more time to prepare", and from then on it

is a matter of an application to the court on

Monday morning saying Mr Murdoch wants more time,

"We have tried 25 other counsel before and we want

to hang on to him, he wants more time to prepare,

give us a week or so".

Sali(3) 14 MR FINKELSTEIN, QC 18/3/93

MR FINKELSTEIN: Yes.

GAUDRON J: But had not the application been made on the

Friday not the Monday, and presumably the solicitor was there in court on Friday and not heard.

BRENNAN J: Yes.

MR FINKELSTEIN:  What happened was the application for the

adjournment was going to be made on the Friday but

the court would not deal with it on the Friday and

said it would deal with that application, the

application for an adjournment, at 10 am Monday

morning.

BRENNAN J:	And the papers were then left with Mr Murdoch?
MR FINKELSTEIN:	The affidavit material does not say that,

but I assume obviously enough that that is the

case.

GAUDRON J: Miss Hibberd's affidavit indicated that the

papers were - - -

MR FINKELSTEIN: With counsel, yes.

GAUDRON J: With counsel, Mr Murdoch, and there is something

to suggest that junior counsel had been briefed?

MR FINKELSTEIN:  Yes, who was not available on that Monday

morning, but junior counsel had been briefed.

TOOHEY J: Mr Finkelstein, there is some possible ambiguity

in paragraph 5 of the affidavit that we have just

been handed. You said you accepted the statement

that Justice Marks' 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.

And you can read that as meaning, contacted them in

the light of the date that had been fixed, or

contacted them generally on the basis that they

would be ready whenever the appeal was listed for

hearing. It is presumably the second, is it,

because there was only a fortnight between the

actual listing of the appeal and it coming on for

hearing.

MR FINKELSTEIN:  Yes. I do not know the answer to that. I

think the likelihood is, just knowing Victorian

practice, that the conversations are unlikely to

have occurred until the case was fixed, until it

was given a date, that is once the court knows what

Sali(3) 15 MR FINKELSTEIN, QC 18/3/93

date it has then they sometimes check to make

sure - - -

TOOHEY J: So, on that basis, we are talking about two

weeks, are we?

MR FINKELSTEIN:	Yes.
TOOHEY J:	Or less?

MR FINKELSTEIN: It is probably about two weeks, sometime

between 10 days and two weeks.

GAUDRON J:  Now, you do not seem to put your application on

the rejection of the adjournment until 2.15?

MR FINKELSTEIN:  I have not come to that. I am not sure, at

the end of the day, whether that would have had a

practical result, that is the problem with it.

What it does demonstrate is, in a sense - and I

hesitate to use this word, I was going to say

"animosity" but I will not use the word - the Full

Court obviously did not like the application at

all. Now, that is clear from the language that the

Full Court, at least two of the members of the Full

Court, used. It just highlights the problem when

the Full Court said to the applicant, "You are not

even going to have until 2.15 to see whether you

can get a barrister tomorrow", because, at the end

of the day, the applicant was in a position that,

having regard to the rejection of his general

application for an adjournment, that he either had

no appeal at all or, at the very least, could have

got whatever barrister was prepared to do the case,
no matter what his experience was, no matter what

area of work he did, no matter how much time he had

to prepare, he could have, at least, said, "Look, I

am in this absolutely desperate position. I will

just take whoever I can get, and if it turns out to

be hopeless at least it is no worse than not having

an appeal at all".
It is extraordinary that the Full Court did not even allow the morning.	They did not have any
other business, in any event, that day.	They did

not allow the morning for really what would have

been scrambling around to find somebody who was

willing to take - he might not have found too many

people willing to go to the Full Court wholly

unprepared, but at least what the Full Court did

not do was allow the applicant the opportunity to
even try last desperate measures, and this would

have been of no inconvenience to anybody. Costs of

the day are incurred, the Full Court is not going

off to any other business because one of their

complaints is they do not have any other business

for the day, and it is interesting to see, once

Sali(3) 16 MR FINKELSTEIN, QC 18/3/93

counsel for the applicant had been excused, and

after the application for the standing down till

2.15 was rejected, the Full Court then said, "We

did not order costs of this morning's application",
so then in the absence of the applicant they

ordered the morning's costs to be paid.

Now, I do not make a great complaint about

that, that is not an appeal point, if the

application had been made when applicant's counsel

was there, no doubt the order would have been made

and properly made. But it just shows how cross the

Full Court was with the applicant's application and

in circumstances where, we say, the displeasure

that was shown by the Full Court was just not

justified. It was not, in the circumstances, an

unreasonable request bearing in mind the

consequences. And then at the end of the day to

say, "We are not even going to give you the morning

to see if you can find anybody at all anywhere to

run the case" is just wrong, because a party should

not be deprived of his right to appeal to a Full

Court in those sorts of circumstances. It is so unfair, that it cannot be regarded as a proper

exercise of discretion at all.

BRENNAN J:  Mr Finkelstein, I would just like to identify

the basic ground on which you put the principal

argument that you are advancing in the light of the

facts. The background fact is that 25 counsel had

been approached unsuccessfully, and that Mr Murdoch

on Thursday says, what, that he wants more time

than he has got to prepare for the Monday morning?

MR FINKELSTEIN:  He will do the case, cannot be ready for

Monday and needs time to prepare.

BRENNAN J:  Now, that is known on Thursday evening?

MR FINKELSTEIN: Yes, and notified to the parties.

BRENNAN J: Notified to the parties. Friday morning there

is a proposed application to the court which is

stood over until the following Monday?

MR FINKELSTEIN: Yes.

BRENNAN J:	Now, Mr Murdoch is left with the papers.
MR FINKELSTEIN:	Yes.
BRENNAN J:	Mr Murdoch does not appear on the Monday

morning?

MR FINKELSTEIN:  No, he does not.

Sali(3) 17 MR FINKELSTEIN, QC 18/3/93

BRENNAN J:  Mr Murdoch has been briefed with a junior and

his junior does not appear on the Monday morning?

MR FINKELSTEIN:  Yes.

BRENNAN J: And the application is then made by counsel who

or so? is instructed to ask for an adjournment for a week

MR FINKELSTEIN:  Yes.

BRENNAN J: And it is said, in the light of those

circumstances, that the court was bound to give the

adjournment or to give an adjournment?

MR FINKELSTEIN:  Yes.

BRENNAN J: For what time?

MR FINKELSTEIN:  A week or so was asked. A week or so would

not have been unreasonable, and the court could

have said, "We will give you three days". A period

of time, sensible in the circumstances, to allow

counsel who had been retained to prepare.

BRENNAN J:  Why is the court not entitled to say, "You knew

on Thursday night that your counsel was not willing

to go on on Monday morning, why did you not get the

papers from him and give them to another counsel?".

MR FINKELSTEIN:  If you put yourself in the position and

look at the realities: on the Thursday night you
find you have to - I ask the Court to put itself in

the position of the parties on the Thursday night.

You know you have got a counsel, you are going to

try and get the adjournment on the Friday just to

make sure you are doing it before the appeal is

going to be called on to make sure that things are

set right before the appeal is called on. The

court will not hear it that day but say they will

hear it at 10 o'clock Monday morning. There may be

an element of risk taking when the court will not

hear the application.

BRENNAN J: That is deliberate brinkmanship, is it not?

MR FINKELSTEIN:  No, that is an unfair characterization of

the conduct, Your Honour, because there may have

been a legitimate belief that, in the circumstances

of the case, the adjournment sought for a very

short period of time was likely to have been

granted. In fact, if you put yourself in the

position on Friday night, knowing the

circumstances, that is the difficulty of getting counsel, the reasonable prospect would have been that the court would allow a short time for

preparation.

Sali(3) 18 MR FINKELSTEIN, QC 18/3/93

BRENNAN J: If Mr Murdoch did not want to go on on the

Monday morning, could he not have gone on	on the
Tuesday morning or the Wednesday morning?	But that
was not an application at any time in the
contemplation of the present applicant. There	was
"a week or so".

MR FINKELSTEIN:  No. It is stated indefinitely in the

affidavit, but an application for an adjournment for seven days or eight days or nine days causes

just as little interference with the other parties'

rights as an application for three days or two

days.

BRENNAN J: That may be so and indicates the extent of the

interference. I mean, you have got two parties on

the other side and you have a court who has set

aside three days for it on a fixture.

MR FINKELSTEIN: But, if the court was to accede to its

application its three day fixture was gone, in any

event. So, from that point of view, it does not

make any difference whether you are asking for

three days or six days or seven days. From the

other parties' point of view, unless they were
inconvenienced by the position of their own

counsel, and that was not a matter raised before

the Full Court, then it would not have made any

difference to them whether it is three days or

seven days.

In either case, what is being sought is a

short adjournment and, in any case, it cannot be

described as humbug, nor can it be described as

putting off the evil day because of the plaintiff's

impecuniosity or potential impecuniosity. It would
not make a zot of difference, from that point of

view, whether it is three days or seven days or

eight days or ten days. If you are seriously

trying to put off the case indefinitely to preserve

your position because the application is towards

the end of the year, then you ask for February or

March or April or something like that into the new

year.

TOOHEY J: But might that not be the practical effect of it.

I mean, how far ahead is the court listed. Once it

comes out of Monday, Tuesday and Wednesday's list,

when can it get back again?

MR FINKELSTEIN:  The Full Court, like most Full Courts, can

manage its lists. If something is important or

urgent it will fit it in, if it is not important or urgent - and fixtures are changed. I cannot answer

directly whether it was capable of being heard that

year. There was no suggestion in the judgments of

the Full Court that it would not have been heard

Sali(3) 19 MR FINKELSTEIN, QC 18/3/93

sometime before the end of the year, bearing in

mind that there was still, I think, three weeks.	I
cannot remember when the calendar closed for the
Full Court but there would have been three weeks of sitting time for that year. And one possibility,
which happens often enough, is you bring on a case
later on the list, second or third case behind this
one listed, bring that on earlier if the parties
are ready and just, in effect, swap positions in the list.

GAUDRON J:	Is it your point that, in all the circumstances, the court should have inquired whether there was
any real prejudice that could not be accommodated?
MR FINKELSTEIN:	The court did inquire and the respondent

said costs, and in circumstances where the court

knew, having been so informed, that the applicant's family was going to bear the costs, then they could

have said, "Adjourn. Costs, condition of the

adjournment, costs paid within 24 hours", fix the sum, it is not unusual for the court, paid to the

parties, if it is not paid appeal dismissed.

GAUDRON J: 

Is your point really that the discretion of the

court miscarried because it did not have regard to
the fact that whatever detriment or prejudice there

was to the other side could be accommodated by

appropriate order?

MR FINKELSTEIN: 

Yes, and at the end of the day - my

submission is more than that. At the end of the

day the court weighs up, when it exercises any

discretion, this discretion in particular, the type

of prejudice that is suffered. If the only
prejudice is costs which, in any event, can be

fixed by an appropriate order, that cannot be

carried really into the balance when the

appellant's appeal right is lost.	The scale is all
one way.

TOOHEY J: But you have left something out of the scales,

have you not; namely, the court's own operations

and the need to run lists and deal with cases

according to some case management system?

MR FINKELSTEIN:  Yes.

TOOHEY J: That is becoming more and more important in the_

minds of the courts, as is apparent from a number

of decisions.

MR FINKELSTEIN:  Yes, it is, and lots of cases now say that

that is a consideration which you cannot reject,

and one of the cases that we have handed to the

Court deals with those very issues. But that is

not the basis, really, upon which the court

Sali(3) 20 MR FINKELSTEIN, QC 18/3/93

rejected the application, and even the court lists

and the listing systems and the orderly disposition

of cases by first instance courts or appellate

courts, cannot stand in the way of justice being

done when a party has tried again and again and

again and again to engage counsel and has not been

successful in that regard. In other words, I think

in the language of Mr Justice Kirby, the rules and

the practice do not become the master.

And I do not overlook it. I do not say that

the Full Court should not have taken into account the inconvenience to the court on listing matters

and upsetting the list, but if that has uppermost

impact it is really making the rules the master,

and in this sort of case that cannot happen and

should not happen.	They are our submissions, if
the Court please.

BRENNAN J: Yes, Mr Finkelstein. Yes, Mr Riordan.

MR RIORDAN:  I understand that it is no proposition from my

learned friend that the court, having once decided

that an application was being made for the purposes

of delaying tactics based on humbug, as was

commented by Mr Justice Tadgell, and an application

which, again in Mr Justice Tadgell's view, was ill

use of the court, having arrived at those findings

I do not understand my learned friend to be saying

that they are not then entitled to refuse the

application.

In my submission, what my learned friend concentrates on in terms of the merits of the

appeal is whether or not it was an improper

exercise of the court's discretion. In that regard

may I first take the Court to one issue, really on

a matter of fact which may not be terribly

important but which, respectfully, I would like to

clarify. That is the question of when this matter

was first listed and the period of notice that the parties had had to deal with the - or prepare or	engage counsel in this particular case for the
appeal.

In my respectful submission, the Court may be

assisted by the exhibit EF4. It is the exhibit

which is part of the exhibit EF-HCl to the

affidavit of Egon Fice, sworn 5 March. That

exhibit is a letter dated 16 November 1992 from the

listing master of the supreme court. In that

letter it refers to the application made by the

appellant for the date to be vacated and, in that
letter, the date of the application, the date of

the letter making the application is referred to as

being 13 November.

Sali(3) 21 18/3/93

In those circumstances, in my respectful

submission, the Court is entitled to infer that it

was not between the 13th and 21st, as my learned

friend says, that the matter was fixed and the

parties were advised, but some time, albeit shortly
prior to, but certainly prior to, 13 November.

The other matter that my learned friend refers to is the suggestion that Mr Justice Marks may have

understood the application for the adjournment to

be a number of months as a result of the fact that

he refers to it being unusual that counsel would

require six weeks to prepare the case.	In my
respectful submission, that is - - -

GAUDRON J:	I am sorry, say that again.
MR RIORDAN:	My learned friend, Your Honour, referred to the

fact that Mr Justice Marks seemed to be under the

impression that the application was for a longer

period than one or two weeks - not within the

recollection of Your Honour, obviously. In that

case, it is not a matter that I will need to

clarify.

Your Honour, as has already been commented on,

in my submission the effect of the application

being for one or two weeks, it is fair to assume,

and certainly there is nothing to indicate to the

contrary, that as has already been noted, there was
nothing within the material which indicated that

the Full Court would be able to deal with it at

that time. So in my submission, the more likely

result would have been that one or two weeks was

not a possibility and that the result would have

been that the matter would have to be relisted at

some time next year.

I concede what my learned friend says, that

the Full Court is quite capable of handling its own

listing procedures and if it had felt it necessary

it may have decided to move cases, presumably

already listed in one or two weeks times, to next

year to put this appeal in front of those cases.

In my submission, that is another matter that

goes into the scales, whether it is appropriate

under these circumstances for that to be done and

to prejudice those persons who had been otherwise

listed at that time in deciding whether the
adjournment for a week or so was justified.

Your Honours, in my submission, the fact is

that the Full Court had decided that the

application had no merit because they had rejected

the basis upon which it had been made. It had been

Sali(3) 22 18/3/93

made on simply one basis: the unavailability of

counsel.

GAUDRON J: But is it not implicit in what they did,

particularly when you look at the adjournment, that

they simply assumed, without evidence, that this appeal was never going to proceed, that all that

was happening was that the applicant was buying

time, with no intention of ever prosecuting his

appeal? Is that not implicit in everything they

did?

MR RIORDAN: With respect, Your Honour, I think that the

first point, no, the second point, yes. Whether or

not it would have proceeded in due course when he

was put in a position where he was forced to

proceed, in my submission they made no finding

about it.

GAUDRON J:  No, but there is an assumption that this appeal

is just a time-buying exercise. And, indeed,

without that assumption there could be no

justification, could there, for bringing the appeal

to an end, for putting his right to have this

matter litigated to an end?

MR RIORDAN:  Not quite so, in my respectful submission, Your

Honour. Ifthe application is purely for the

purpose of time-buying and the appellant puts that
purpose above what may be still a secondary
purpose, and that is running the appeal, in my

submission, the Full Court would still be

entitled - - -

GAUDRON J:  You accept that that assumption is implicit in

what was done?

MR RIORDAN:	I accept that they were implying that the appellant was prepared to risk his prospects of
running the appeal on the chances of buying time
with an application for an adjournment.
GAUDRON J:	So that time was more important than the appeal

to him.

MR RIORDAN:  That was the finding. I accept that,

Your Honour.

GAUDRON J:  And there was no opportunity; the deponent was

not cross-examined about it, the allegation was not

put in terms that could be answered?

MR RIORDAN:  Your Honour, firstly, the deponent was not

cross-examined about it because the affidavit, of

course, was not formally received into evidence.

Sali(3) 23 18/3/93

GAUDRON J: That makes it worse. There can be no basis, can

there, for refusing to accept the affidavit?

MR RIORDAN:  No. I simply make the point, Your Honour,

that it was a matter that there was no opportunity

given to the other parties to cross-examine and

neither was there - - -

GAUDRON J:  Was there an allegation made in terms that that

was what was going on, so that Mr Jones, if that be

his name - I have forgotten - could say, "Well, I'd

like to deal with that, I've got a right to be

heard on that."

MR RIORDAN:  In my submission, and as reflected in the

affidavit of Ms Hibberd, in the course of the

argument, the court left no doubt in the mind of Mr

Jones. Indeed, in my submission, it is part of the

case.

GAUDRON J: But it was not your case, what I am suggesting.

It was not the respondent's case that this man was

buying time, that this man had taken the view that

he would risk his appeal to buy a bit of time and

it should be on his own head. That was not your

case, was it?

MR RIORDAN:  With respect, Your Honour, I think it was the

case. The argument by the respondent was that the

application had no merit.

GAUDRON J: But it was not a proposition that was put in

terms, was it?

MR RIORDAN:  With respect, I think it is indicated.

Unfortunately, Your Honour, we do not have the

transcript of the submissions that were made, but

in my respectful submission it is the only

inference that can be drawn from the fact that the

affidavits that were filed, both by the first

respondent and by the second respondent - - -

GAUDRON J: And you filed one, did you not, or two?

MR RIORDAN: 

The first respondent filed one and the second

respondent filed one, Your Honour, so there was one
each. Both of them were, in my submission,

directed to nothing else but the fact that there

was an abundance of counsel available and that this

was nothing but a time-buying exercise and ill-use

of the court and should not be allowed. So, I have

to say, Your Honour, that in my respectful

submission the position of the respondents was at

all times, that that was the only purpose -

GAUDRON J: That was a very serious finding to make, was it

not, on very little material?

Sali(3)	24	18/3/93
MR RIORDAN:	Yes, it was a serious finding.	Can I deal with

the first point, Your Honour, and say, yes, that it

was a serious point. That is indicated by

Mr Justice Tadgell where he says that, in his

experience, it is unique for this court to take

this position. And certainly, in my submission,

the significance of the decision was not lost on

the Full Court.

GAUDRON J:  I hope it is unique to take that position on

such little evidence.

MR RIORDAN:  Could I take Your Honour to the material upon

which, in my submission, it would appear that the

Full Court did arrive at its conclusion, because in my submission there was more than just the

affidavit material. If I might deal with that

first.

In my submission, the affidavit material of the appellant was extremely skinny. All it says

is:

After approaching all the barristers' clerks

and some twenty-five Queen's Counsel we were

unable to secure the services of Counsel.

Now, that has to be measured, Your Honour, with the

fact that the real efforts are not detailed, the

real refusals, the reason for refusals, the lack of

hope that may have come about as a result of all of

that. They have not named the counsel who were

approached and, in my submission, that is of some

significance when faced with what is the

conflicting evidence of an abundance of

availability of counsel. It is not even put, at

that stage, that Mr Murdoch had received a

backsheet in response to the specific question.

GAUDRON J:  Can I ask you this: when had you had the

affidavit of Mr McLindin that appears at page 89,

90?

MR RIORDAN:	On the Monday morning.
GAUDRON J:	You had had it on the Monday morning.

Mr McLindin; when had he got your affidavits?

MR RIORDAN:  That would have similarly been received on the

Monday morning, I believe.

GAUDRON J: So, even until Monday morning it was not clear

if it was to be taken from your affidavit that you

really were asserting that he, Mr McLindin, as well

as his client, was engaging in humbug.

Sali(3) 25 18/3/93

MR RIORDAN: In fact, Your Honour, if I could take

Your Honour to exhibit EF6 of the same affidavit I

did before. It is confusing, but it is the exhibit

to EF-HCl. EF6, in my submission, contradicts

that, Your Honour, because on the 27th the

solicitors for the first respondent had sent a

letter precisely detailing the position that was to

be taken by the first respondent.

GAUDRON J:	I am sorry, EF6?
MR RIORDAN:	EF6, it is a letter of Phillips Fox dated

27 November which was the Friday, sent by facsimile

transmission, Your Honour.

GAUDRON J: That is the Friday, is it?

MR RIORDAN: That is the Friday, Your Honour. That is at

the time, effectively, when it became known that an
application would be made. In fact, I am

instructed, Your Honour - - -

TOOHEY J: But that is on an entirely different footing, is

is not. That is on the basis that Mr Murdoch

literally cannot be available because he is already

engaged in another case.

MR RIORDAN: That was in response to the information

contained in the previous exhibit, Your Honour,
which was a facsimile that was received by the

solicitors for the first respondent on the Thursday

night. I think the affidavii clarifies it as to

the time it was received, that it was late on the

Thursday night. The handwritten facsimile - - -

BRENNAN J: That really is a different basis from that which

Mr Finkelstein advanced. This facsimile

communication says that Mr Murdoch is going to be

in the Full Court - I presume another Full Court -

on another matter on the following Monday. If that

is so, that raises other problems. Nobody went to

get the papers from Mr Murdoch but left him in

possession of them.

MR RIORDAN:  That is so, Your Honour. I think that

Your Honour Justice Gaudron really - for an

understanding as to why the court arrived at the
decision it did, there needs to be more looked at
than simply the conflicting affidavits in terms of

the background.

GAUDRON J: But there is nothing more to look at. That is

the problem. The court has impliedly found that Mr

McLindin and his client were less than frank, that

they were playing games with the court, that the

client was prepared to risk the appeal to buy time

on really what is very, very meagre evidence.

Sali(3) 26 18/3/93

The question must be whether it is right for a

court to make findings of that kind on the sort of

evidence and in the sort of procedure that was here

involved, where the allegation is not specifically

put in a way that can be answered, either by

evidence or the like.

MR RIORDAN: 

There is one matter I have been corrected on in

instructions, Your Honour, and that is that the
affidavit of Mr Fice that was filed was filed and

served on the Friday rather than on the Monday. I

think-I misled Your Honour about that.

GAUDRON J: Well, even so - - -

MR RIORDAN: With respect, there was sufficient indication

by the letter from Phillips Fox - - -

GAUDRON J: But even so, the court says, "We won't even

accept your affidavit". I mean, what are you to do

in circumstances where the court says, "I won't

even accept your affidavit"?

MR RIORDAN:	With respect, Your Honour, the position has been that the court has heard all the matters in
the affidavit.

GAUDRON J: Yes, but then, without accepting the affidavit,

without setting up the procedures which normally

exist when affidavit evidence is relied upon, so

that at least the allegation can be put to the

deponent and denied or dealt with, without setting

up any of those procedures, by denying all the

procedures whereby one normally raises an

allegation, it proceeds in this way.

MR RIORDAN:  With respect, Your Honour, the fact is that the court was looking - I am sorry. The appellant did

have the opportunity.	He knew well what the
position was going to be of the respondents.	He
knew well, in my submission, or should have known

well what the attitude was likely to be of the

court.

Your Honour has been directed to the fact that

this was - and in my submission, it was a matter
that Justice Marks effectively refers to in his

judgment. There had previously been an application

made in similar terms by the appellant to the

listing master. The letter to which I referred the

Court to a moment ago indicates that having

consulted with the presiding judge about putting it

off to another date - this is the letter from the

listing master which, in response to the

application to vacate the date in the second

paragraph, says:

Sali(3) 27 18/3/93

I have discussed the matter with the presiding

Judge of No. 2 Full Court and the Court will

expect you to be ready to proceed on the

30th November.

Now, Your Honours also heard that during the course
of the submissions, as the presiding judge put it
to Mr Jones, that there has been contact on several

occasions between the two times to ensure the

matter would be ready to proceed.

Given that, together with the letter received

from the solicitors for the first respondent, and
the affidavit which was served by the first
respondent, the appellant did extremely little to

protect his position by then turning up, not with

the counsel who supposedly needed more time to

prepare, not with the junior counsel, but with

counsel who attends and makes application on the

basis that, "I am only here to apply for the

adjournment and I am not briefed if the matter

proceeds."

The court has inferred from those

circumstances that what has been adopted was - I

think Justice Marks refers to as "shotgun

tactics" - and that the appellant is simply stating

that he cannot get, or he has approached 25 counsel

and had been refused.

In my submission, under those circumstances,

is the position, that on the very statement that he

approached 25 counsel, that therefore you must be

able to be entitled to get an adjournment, faced

with contradictory affidavit material about the

availability.

In my submission, the judges - the court also, in their judgments, gave consideration to the

period of time that would have been necessary to

prepare the appeal. It is considered to be

possibly two or three days.

In my submission, even as of Thursday, when

they became aware that Mr Murdoch may not be able
to appear, there would still be adequate time, and
there was no evidence of any attempts whatsoever,

in fact, if anything the evidence is to the

contrary, that the papers remained with Mr Murdoch.

There was no evidence that there was any

preparation made, or any attempts made, to have the
matter prepared for appeal on the Monday.

On the Monday, in the application, there was no suggestion that only a short period of time was

required. Rather, an application was made for a

week or two which, in my submission, is likely to

Sali(3) 18/3/93

lead to the matter being put off until some time in
the following year unless the Full Court is
prepared to rearrange all its procedures for the

convenience of the parties in this particular case.

The judgment of the court also takes into

account the fact that, with the lack or apparent

lack of efforts to ensure that counsel would be

ready to proceed on the day, that there had been an

undertaking made to the court regarding the
preparation of the appeal, the history of the

matter involving three previous applications for

stay.

Your Honour, as I mentioned earlier,

Mr Justice Tadgell, in my submission, makes it

quite clear that he considers it to be a very

significant decision that he is making by saying it

is unique, given those findings. Under those

circumstances it is my submission that, to say that

there are not proper considerations taken into

account by the court, that in arriving at this

conclusion, is really to deprive a court from the
capacity to be able to manage its own list in these

matters and decide whether or not it is being

ill-used.

Certainly, in my submission, under section

35A, the special leave point, this case really has

been a matter where the court has simply made an

assessment of the facts as it saw them as it was

before that particular court. Having made that

finding, has then resolved that it has been

ill-used.

If I could deal with the question - I am not sure whether my learned friend persisted with the suggestion that the second application that was

made, the one that was made without argument and

without reasons, is also the basis for this

application: the application of the matter should

be dealt with - should be adjourned to 2.15 to

enable efforts to be made to see whether counsel

can be obtained for the next day.

In my submission, that too is determined by

whether or not the Full Court was entitled to draw

the inferences and come to the conclusions that it did in rejecting the first application. If it was

entitled to conclude that the application was

purely for the purposes of delay, as is indicated

in the affidavit of Heather Hibberd - - -

GAUDRON J: Would the same delay factor operate when you are

talking about, well, "Until tomorrow morning"? You

do not have the same - - -

Sali(3) 29 18/3/93

MR RIORDAN: It is certainly open. It is more open to think

if, in fact, the adjournment was simply till

tomorrow morning - - -

GAUDRON J: Well, it was, was it not?

MR RIORDAN:  - - -it may not have necessitated what I will

put to Your Honour as being the extended - the real

effect may not have been that it had to go into the

following year.

GAUDRON J: Well, the effect - the substance of the

application then was, "Leave it in the list and we

will see if we can have somebody here tomorrow and

we will tell you at 2.15".

MR RIORDAN: That is so, Your Honour.

GAUDRON J:  Now, in those circumstances, the delay

consideration is different, is it not?

MR RIORDAN:  Yes, Your Honour, I accept that. However, Your

Honour, the point I make - - -

GAUDRON J:  And, to some extent, cuts the ground from the

assumptions which seem to invest the first

decision.

MR RIORDAN: With respect, Your Honour, I think, in fact, it

probably confirms the suspicions. As was said by

Mr Archibald on behalf of the first respondent, in

response to the second application, it really shows that measures that should have been put in place at

an earlier time were not done.

GAUDRON J: Yes, I see that.

MR RIORDAN:  It can be cut both ways and it is only now that

we have been forced to this position that we are

prepared to do it.	I acknowledge, Your Honour, in
that respect, it could cut both ways.

The submission that I make, Your Honour, is that by that time the court had concluded that the

application had been made purely for the purposes

of delay and that it was an ill-use of the court. I am sorry. During the course of discussions, as indicated in the affidavit of Heather Hibberd, the court invites Mr Jones to put any propositions to

it - it is in paragraph 11 - and, in my submission,

you are entitled to - for the court, at that stage,

is saying, "Really, is a week or two", with the

consequences which, in my submission, would flow

from that, "is that really necessary?" In response

to that, Mr Jones says no, there is nothing else

that he has instructions to put.

Sali(3) 30 18/3/93

In my submission, what occurs at that stage is

the Full Court, having invited Mr Jones to put

alternative propositions which, in my submission,

is the way it should be done - if Mr Jones was to

say, "Really, we need a week to do this, to be able

to get counsel properly prepared, but if you are
against me on that, then at the very least we might

be able to get something together by tomorrow.",

the court, by offering him that invitation, are

intending to find out what the position of the

appellant is so they can deal with the application

finally.

The appellant makes, in my submission, what

is an election, that, "No, seven days is what is

required or two weeks", whatever it might be

sufficient to interrupt the listing procedures and

in those circumstances, after being considered,

submissions made by all parties, there is then

judgment by all members of the court and the

application is refused.

Under those circumstances, in my submission,

the further application may well be, and the court

was entitled to infer, really confirmed the misuse

that had already been made of the court in the fact

that the appellant was attempting to elect, in the

first application, by using the "shotgun tactics",

as it was described by Mr Justice Marks. In the

second application, he then says, "Well, under

those circumstances I would like to go back to a

second position".

The question, in my submission, that this

Court needs to consider is whether it is prepared

to condone what are, effectively, elevator

applications, where not a complete disclosure is

made of the position of the appellant, or
applicant, in the first instance, on the basis that

if that is refused, he can then proceed to make a

series of later applications until one is

eventually successful. In my submission, it is

more in accordance with the fact that the

application was not a proper one for that court.

If the Court please.

MR FINKELSTEIN: Just two points, if the Court pleases. In

the last Hibberd affidavit - this is really to

answer some points that Your Honour Justice Gaudron

raised - in paragraph 12, what is described is the

arguments of counsel against the application for an

adjournment, and you can see from that paragraph

that there were three grounds to resist the

application. Impecuniosity, that is that you will

not be compensated adequately by an order for

costs. Unavailability of counsel: not a good

reason to grant an adjournment. That is not

Sali(3) 31 MR FINKELSTEIN, QC 18/3/93

challenging the basis of the affidavit, but merely

saying that that by itself is not a good reason.

BRENNAN J: Just before you proceed past there, you have put

your application on the footing that the Full Court

was asked for an adjournment because Mr Murdoch
wanted more time. If I understand correctly the

basis on which the Full Court appreciated the

nature of the application, it was something quite

different. Now, I am looking at the judgment of

Mr Justice Marks - - -

MR FINKELSTEIN: At the foot of page 54?

BRENNAN J: At the top of page 54:

The only basis on which the present

application is put is inability on the part of the appellant to obtain the services of senior

counsel. An affidavit has been received -

and that affidavit was not controverted -

to the effect that some 29 senior counsel -

et cetera. Now, reading that paragraph, at least I

have derived from that that Mr Justice Marks
understood the application to be this: we have no

counsel; we have been caught short and we wanted to

get counsel for this morning; we have applied to 25

counsel unsuccessfully, our twenty-sixth got tied

up last Thursday and we want an adjournment because

we have no counsel and we cannot get any. And then

the affidavit met that, one might think,

devastatingly by saying, "29 were available on

Friday."

MR FINKELSTEIN:  Yes. There are two aspects of

Mr Justice Marks' judgment. In that paragraph it

plainly misstates the application because he

misstates the factual basis that was put, the

factual material, the affidavit of McLindin that

was relied upon in support of the application which

did not say there was no counsel. It did say that

there was not a counsel for the Monday but did say,

in terms, in paragraph 6, that Mr Murdoch could do

the matter but he could not commence preparation

before Sunday.

BRENNAN J: That affidavit is sufficient to support your

submission here, but it is a curious thing that the

Full Court - Mr Justice Marks understood the

application to be of the kind that he set out at

page 54.

Sali(3) 32 MR FINKELSTEIN, QC 18/3/93

MR FINKELSTEIN:  But paragraph 6 of the affidavit, which

appears at page 90 of the application book, is

unambiguous on that point.

GAUDRON J: And paragraph 8.

MR FINKELSTEIN: Yes, and paragraph 8 read in conjunction.

It is just unambiguous what the material was and what the basis of the application was for. He does

misstate it in that paragraph and he does misstate,

I think, the factual background at the foot of the

same page when he said:

We have been told that senior counsel in

question had laid down a rule that he required

three months' notice of an engagement.

Now, that was not the senior counsel in question,

that was, as appears from McLindin's affidavit,

counsel who had been engaged before the case was

listed who said he could not do it until February,

but then in the expectation that the case would be

called on in February, Mr Justice Marks - that

counsel was no longer relevant. He had been

superceded by 25 requests and a twenty-sixth, yes,

with a qualification. But Mr Justice Marks still

goes back to the position of the first counsel who

had never been available for the appeal and seems

to misunderstand and, in effect, ignore the

material that was put in support of the

application. He certainly misstates it.

BRENNAN J:	He evidently misstates it again on the following page, page 55, where he notes that there have been
some "two weeks", to his knowledge, "in which to
find counsel", and that misunderstanding seems to have been shared also by Mr Justice Harper
expressly.

MR FINKELSTEIN: Tadgell, yes.

BRENNAN J: And certainly not repelled in the judgment of

Mr Justice Tadgell.

MR FINKELSTEIN: That is true. What this Court knows is

that McLindin's affidavit was read.

BRENNAN J:  What this Court does not know is the precise

terms in which counsel put his application.

MR FINKELSTEIN:  It could only have been on the basis of the

material, and you do know that it is in conformity

with the application because McLindin's affidavit

itself says, "A week or so"; Miss Hibberd's

affidavit says, "It was an application for

adjournment for two weeks". Now, what is the point

of an application for an adjournment for two weeks

Sali(3) 33 MR FINKELSTEIN, QC 18/3/93

unless it is to have counsel prepared for the case.

So, if you put those two together you at least

know it is an application for a short time and it

is plain, in our respectful submission, that the basis of the application is as identified in the

affidavit, because the affidavit itself argues the

adjournment application. It does not just put

forward facts, it requests the adjournment to

enable Murdoch to prepare.

Now, I do not know how that could be

misconstrued. That is an unambiguous request in an

affidavit, a plea in the affidavit, and ignored

when the Full Court comes to deliver its reasons

for refusing the adjournment. In other words, they

ignored the material which they allowed - true it

was not filed, but they allowed it read and then

they ignored it, and decided the case on other

points, some of which had long since ceased to be

relevant.

Your Honours, our point is that there was a

gross injustice. Being a gross injustice makes the

decision reviewable. We say that it is a very

strong case for gross injustice, and it is

important that such a decision not be allowed to

stand. May it please the Court.

BRENNAN J:  The Court will consider the matter and will give

its decision at 2 o'clock this afternoon.

MR FINKELSTEIN:  May it please the Court.

AT 11.10 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.04 PM:
BRENNAN J:	Now, Mr Kempton, I understand that if special

leave were granted in this case the material on

which the appeal would be founded would be five

affidavits as follows: the affidavit of

Ross Peter McLindin, sworn on 27 November 1992; the

affidavit of Nicholas Paul Jones, sworn on

11 March 1993; the affidavit of Heather Jane

Hibberd, sworn on 27 November 1992; the further

affidavit of Heather Jane Hibberd, sworn on

12 March 1993 and the affidavit of Egon Fice, sworn

Sali(3) 34 MR FINKELSTEIN, QC 18/3/93

on 27 November 1992. Is that the totality of the

material on which the present application is based?

MR KEMPTON:  Yes, that is correct, Your Honour.

BRENNAN J: And that would be the material in the appeal

book if special leave be granted?

MR KEMPTON:  Yes, that is correct, Your Honour.

BRENNAN J: There will be a grant of special leave in this

matter.

MR KEMPTON: If it please, Your Honour.

BRENNAN J:  Mr Riordan, I understand you have an application

to make?

MR RIORDAN:	That is so, Your Honour. On behalf of all of the parties, we would like to make an application
under section 10(3) of the Federal Proceedings
(Costs) Act.  I have copies. I understand that
Your Honour may have been given one by your
associate of the relevant provision.

BRENNAN J: Yes, my associate has provided me with one.

MR RIORDAN:  Your Honour the learned presiding Judge and

Your Honour Justice Gaudron may recall that this

matter was originally listed for hearing on Friday

in Melbourne but that at that time it was unable to

proceed, I an instructed, because there were not

three members of the Court who were able to sit to

hear the matter. Under those circumstances, the

parties wish to make an application under the

section for a cost certificate.

BRENNAN J: Yes. I suppose there may be a question as to

whether the adjournment of the application from

Melbourne on Friday last amounted to a

discontinuance, and whether today's proceeding

amounts to a new hearing. But those are matters

which perhaps could more appropriately be

considered by the Full Bench at the time that it is
considering the substantive appeal, and is there

any reason why the matter should not stand over

until then?

MR RIORDAN:  There may be, Your Honour. The position is, is

that having granted leave to appeal, with respect,

if it is possible - and it is not a matter that has

been canvassed, it was only mentioned during the

adjournment - that the parties may agree that the

matter should be remitted if it is within their

capabilities to do so back to the Full Court,

rather than troubling this Court with the hearing of the appeal, in which case there would not be a

Sali(3) 35 18/3/93

further opportunity for this application to come on

before the Court. That has been canvassed, and I

do not say it to the Court as though the parties

are capable of doing so, but it has been suggested

if that does occur, Your Honour, as it may, then

there would not be another opportunity.

Your Honour may recall on Friday the matter

was called on for hearing at 2.15 and appearances

were taken.

BRENNAN J: Yes.

MR RIORDAN:  I -accept, Your Honour, whether that constitutes

the start of the hearing or not could be something

which would be subject to some argument but, in my

respectful submission, the purpose of the section

is to provide an indemnity for parties where,

through no fault of their known, the hearing is

unable to proceed as a result of some difficulties
that occur with the Court and, in my submission,

whether or not further commencement than that is

required, the Court, in my submission, should be

inclined to take a wide view of it because there

would be no difference in the parties if, say,

there had been some greater commencement, if I can

put it in those terms, Your Honour, than what there

was in this on Friday.

I think it is intended, in my submission,

Your Honour, that the legislation would not apply

where a matter was simply not reached.

BRENNAN J:	No, it is not a question of this application not having been reached. There is no doubt that the
matter was adjourned on Friday for the reason that
you have mentioned and that, if it be material to
say so, that was step was not, in any way,
attributable to the neglect, default or improper
act of any of the parties to the proceedings. So
that much can be accepted. It is a question, I
suppose, of the construction of subsection (3).

MR RIORDAN:  Yes, that is so. To the extent that Your

Honour is prepared to accept submissions on it now,

the only other matter I could say to encourage this

Court to deal with the matter now - I have further
copies if - - -

BRENNAN J:  It might be as well if you were to hand them up,

please, Mr Riordan. If you have anything you wish

to add, perhaps it as well if you were to give us

the benefit of any further submissions.

MR RIORDAN:  I have little else, Your Honour, except that

what is already within Your Honour's knowledge, and

maybe His Honour Justice Toohey for his benefit I

Sali(3) 36 18/3/93

might simply say this in support of the submission,

and that is that, in my submission, it was a

discontinuance. The matter was listed at 2.15; the

Court reconstituted to hear the matter, and

certainly from the point of view, whilst it might

have been in the knowledge of the Court, from the

point of view of the parties, the matter was called

on, appearances were taken and at that stage, to

the knowledge of the parties, the matter had

commenced to be heard before Your Honour the

learned presiding Judge made the comments and

reques.ted any further comments at that time
regarding the capacity of the Court to continue.

In my respectful submission, the only other

thing that I was going to mention is that

Your Honour, under the terms of that section, if it

is appropriate, in my submission, there is no

reason why it should apply any less to a situation

such as that than a situation where, for example,

there being two minutes into submissions before one

of the members of the Court had indicated that he

or she had a problem with the continuance of the

hearing, in my submission, there is no substantive

difference and, in my respectful submission, and

for those reasons, the Court should take a broad

view of what was meant by "discontinuance" and

allow the application for a payment from the fund.

If the Court pleases.

BRENNAN J:  Yes. You have nothing to add to that,

Mr Kempton?

MR KEMPTON:  I have nothing further, apart from we support

that application, Your Honour.

BRENNAN J: Yes. There will be a cost certificate granted

to each of the parties to the proceedings, limited,

of course, to the costs of Friday last, and the

form of the certificate should be submitted by the

respective parties to the Registrar for settlement.

MR RIORDAN: If the Court pleases.

AT 2.15 PM THE MATTER WAS ADJOURNED SINE DIE

Sali(3) 37 18/3/93