Salim v Ingham Enterprises Pty Limited

[1998] HCATrans 360

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S41 of 1998

B e t w e e n -

ALI SALIM

Applicant

and

INGHAM ENTERPRISES PTY LIMITED

Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 OCTOBER 1998, AT 10.46 AM

Copyright in the High Court of Australia

MR A.G. NORMAN:   Your Honour, my name is Alan Norman, and I am one of the accountants for the applicant, Mr Salim, and I seek the Court’s permission to speak on his behalf here today.

GLEESON CJ:   Yes, you have that permission.

MR J. ANDERSON:   If it please the Court, I appear for the respondent.  (instructed by Brook Worthington)

GLEESON CJ:   Yes, Mr Norman, go ahead.

MR NORMAN:   Your Honour, I also seek permission of the Court to hand up some documents that have been prepared by Mr Salim just to give a chronological running of the events.

GLEESON CJ:   What is the extent of these documents, Mr Norman?  We have procedures for filing written documents in advance of these and we read the papers in advance.  We do not usually expect to get any substantial documents for the first time when we call the matter on for hearing.

MR NORMAN:   We understand that, your Honour.  What it is, is an outlining of the summary that was based - - -

GLEESON CJ:   But how lengthy are they?  How many pages?

MR NORMAN:   It is 28 pages.

GLEESON CJ:   No, we are not prepared to accept at this stage 28 pages of written material.

KIRBY J:   We have read all the documents that we have in the file.  That is the whole point of these procedures.  So, we know what it is all about.

MR NORMAN:   Okay, thank you.

GLEESON CJ:   No, that is not okay.  You want to represent Mr Salim.  Now is your opportunity to put oral submissions on his behalf and you have 20 minutes within which to do that.

KIRBY J:   Just give us the main points that you want to say in the documents.

MR NORMAN:   In the document – the main point that has appeared to come right through from the lower courts is that there was no break in trading between the parties.  It is Mr Salim’s view that there was a break in trading and we can show that by the documents of Ingham’s own invoices as well as letters from their solicitor advising a termination of agreement and a point of settlement of funds to be paid to Inghams by Mr Salim in the earlier period that he ceased trading with them.

Mr Salim maintains that he ceased trading with Inghams on 1/4/1983 at which point prior to that he was trading with them as a partnership trading as Halal Chickens.  He then recommenced trading with Inghams on 5/3/1985 then as Halal Chickens Pty Ltd.  All the documentation from Inghams clearly shows that they acknowledged the difference between the two parties because their invoices are directed to the two different type parties.  Now, with that, we submit that there was - - -

KIRBY J:   No one disputed in the case that Mr Salim was the alterego of the company and no one disputed in the case the fundamental principle concerning the separation of the offices and the company so that there is no point of principle that is important.  This is simply the application of established principle to the facts of a particular case and the High Court cannot take up every matter where it is just a matter of factual elucidation.

MR NORMAN:   Right.  We did appreciate that, your Honour.  All we are trying to show on behalf of Mr Salim is after all the documentation was put into chronological order it just did not make sense in the way that the flow of the information, so we rearranged it on his behalf and it is to us - - -

KIRBY J:   So, Mr Salim’s complaint is about the application of the established principle to the facts of his particular case?  That is really what it is about, is it not?

MR NORMAN:   Yes.

KIRBY J:   Well, unfortunately, that is not a matter which would ordinarily attract special leave to appeal to this Court because there is no dispute about the principle.  It has been around for 100 years and more and it is simply a matter of looking at whether the Court of Appeal applied the principle, which everyone agrees with, to the facts of this case.  That would not normally attract special leave to appeal in this Court.

MR NORMAN:   In that case, that is all we can put before the Court at this time, thank you.

GLEESON CJ:   Thank you, Mr Norman.

The present case turned upon the application to the facts of well established legal principles.  There was a difference of opinion between the members of the Court of Appeal but that difference of opinion turned not upon any doubt as to the applicable legal principles but upon a different view that members of the Court took of the particular facts of the case.  This is not an appropriate case in those circumstances for the grant of special leave to appeal and the application is refused.

Is there an application for costs?

MR ANDERSON:   There is, your Honour.

GLEESON CJ:   What do you say about that, Mr Norman?  Mr Anderson is asking that your client be ordered to pay his client’s costs of the application.

MR NORMAN:   We can only say that we find that unreasonable, your Honour.

GLEESON CJ:   The order of the Court is that the applicant must pay the respondent’s costs of the application.

MR ANDERSON:   May it please the Court.

AT 10.52 AM THE MATTER WAS CONCLUDED