Singh v Crafter &

[1990] HCATrans 261

A',r	-!.i, AUSTRALIA,il.!"
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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P32 of 1990

B e t w e e n -

PARIM SINGH

Applicant

and

WILLIAM HENRY CRAFTER and

DATO JAAFAR ONN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

Singh 1 25/10/90

AT PERTH ON THURSDAY 25 OCTOBER 1990, AT 4.10 PM

Copyright in the High Court of Australia

MR D.H. SOLOMON: If it please Your Honours, I appear for

the applicant. (instructed by Messrs Solomon

Brothers)

MR M.L. BENNETT: If it please Your Honours, I appear for

the respondents. (instructed by Messrs Bennett &

Co)

MASON CJ: Yes, Mr Solomon.

MR SOLOMON:	Your Honours, in preparing this application in the last day I note that one page of one of the
judgments in the Full Court has regrettably been
missed out in the photocopying. It should be
between 116 and 117.  I have marked page 116A. I
regret the error was not picked up when the book
was prepared.
MASON CJ:	Thank you.
TOOHEY J:	I think, in fact, the two pages have been

transposed. I think they are there, Mr Solomon.

MR SOLOMON:  Are they?

TOOHEY J: If you look at 118 - - -

MR SOLOMON:  No.

TOOHEY J: Is that not right?

MR SOLOMON:	I think if you look at the small numbers on the top, it is page 11 of Mr Justice Rowland's
judgment.
MASON CJ: Yes, it is missing.	We do need it, Mr Solomon.

MR SOLOMON:  Yes. I apologize for that error.

Your Honours, this application arises from a

rather lengthy trial of a claim brought by the

respondents for specific performance or,

alternatively, damages for a contract for the sale of shares of a publicly listed and publicly traded company. There was no preliminary issue. The

matter was set down for trial on a plea for

specific performance or damages; no question of

liability being decided as a preliminary point.

Judgment was reserved by His Honour the trial judge after we had got into the fourteenth day of the

trial.

In a reserve judgment which he delivered some

months later, or about a month later, I believe, in

April this year, His Honour said he granted the application to reopen of the respondents. He did

not say he did that with any degree of certainty.

In fact, he used the word hesitatantly that he

Singh 2 25/10/90

granted the application. But he did not have an

application before him at the time.	He did not
have one at all.

Your Honours, what had happened was that at

the close of the case, the plaintiffs, in December,

after about six days - the applicant, the

defendant, from Malayasia, had been informed of a

serious illness of his young <laugher.	He had to go
home.	We only had a day or so before the long

recess for the Christmas holiday period any way and the hearing at that time. So, my learned friend

formally closed his case; the matter was adjourned

for two-and-a-half months until March; came back on

in March; there was my application simply to further cross-examine one of the plaintiff's

witnesses on a document that had not been

previously available; there was no application to

reopen.

The defendant's case was presented over some

days and then submissions were made and when those

submissions were made, the submission was, "Well, a

vendor's claim for specific performance of listed

shares has never attracted specific performance,

damages is pre-eminently adequate, and there is no damages proved." So, a couple of days after that

at the very end of my friend's final address,

having spent a long time on the facts and all, he

applied to reopen, and he had a document that he

applied to tender by way of reopening that he said

had been obtained from the Sydney stock exchange

that morning, and that was after 4 o'clock and that

was on 14 March.

That application was made; short submissions

were prepared in opposition during the long

adjournment over the evening. The next morning my

friend proceeded with his application but at the

same time pressing the judg_e throughout: "Don't

worry that there's no damages proved, you can

decree performance; you should decree performance.

Furthermore, you've got evidence of damages". It

turned out that was mistaken because the only

evidence was documents I had tendered as

inconsistent statements. There is a long line of

authority that they are not admissible as proof of

facts in them. So, continuing to press for

specific performance or to say that there were

damages, eventually reached a point where

His Honour could see a serious problem in the case

and this is really where, I think, with respect,

the problem arose because the matter had been
expedited because of the nature of the defence

involving allegations of insider trading, it was

worthy of having a quick response, His Honour

Singh 25/10/90

developed a concept that, "Well, the only way I can

give you a quick result is" as he put it, "to

decide liability and we'll have to come back and

argue about these other questions later." Well,

there was no question that he was going to make a

determination on these other questions.

Now, one can see how that arose, if

Your Honours have read my affidavit which deals

with it -

MASON CJ: Yes, we have.

MR SOLOMON:  - - - and one can see it in the supplementary

book I have put in of the transcript at that time

at about 126 and 127 of that supplemtary book where

His Honour began to talk about a quick result. It
is in the book at 169 and 179, the references to my
affidavit, pages 1.8.7, 1.8.9, 126 and 127 is the

affidavit, the supplemetary book at 169 and 179.

Your Honours, we are all hearing plenty about

the benefit of expedition and speedy justice and

justice delayed is justice denied but there is a

limit to all of this and, surely, when a case

finishes then a party is entitled to a judgment on

that case. It is not a matter of deciding, "Well,

some matter of expedition warrants giving a partial

judgment." That is to bring the means to the point

at the end, to make expedition the aim in itself.

And that, I think, with respect, is where

His Honour fell into error. After that, I can only

say as His Honour Mr Justice Rowland said in

dissenting, he either confused himself in thinking

he had an application before him or thought he had

an entitlement to grant reopening of his own motion

without hearing the parties.	One could not say
which as His Honour put.

MASON CJ: What does this come to? That you were denied

natural justice?

MR SOLOMON:	Indeed.
MASON CJ:	In that you were not given an opportunity of

contending against a reopening?

MR SOLOMON:	Indeed.
MASON CJ:	And that the Full Court erred in not so finding?
MR SOLOMON:	The Full Court - I do not think any of them

suggested that I was not heard and yet

notwithstanding that one has these long-standing

statements like Mr Justice Rich's words from Cole v

Cameron in 1944 that when you are denied natural

justice you have an ex debito justitiae right to

Singh 25/10/90

have the order set aside, what was said against me

by my learned friend and accepted by His Honour

Mr Justice Wallace, as one of the majority, was I

would not have extracted the order. I should have

gone back to the trial judge, notwithstanding he
had delivered written reasons 60 pages long making

what I would put in inverted commas "a finding"

about inadvertence and no prejudice when he had no

evidence but he had made such findings.	He
delivered written reasons.	One has the transcript

of what transpired when he delivered his judgment

when I tried to -

MASON CJ: But is that not the real problem about granting

special leave? Now, if we grant special leave and

we were to uphold your appeal, then the matter

really goes back to the judge at first instance

again.

MR SOLOMON: That was the dissenting judge's view but, with

respect, there - - -

TOOHEY J: But you want the matter to go back generally, do

you not?

MR SOLOMON:  No, I want final judgment because, in my

respectful submission, there is no - it would only

need to go back if something needed to be

determined. It is entirely appropriate, one can see now and, indeed, with Verwayen's case having

come out in the last month, even more clearly, that

one cannot possibly show that we were not

prejudiced by the conduct of the trial. So, there

is no point sending it back.

TOOHEY J:  I am sorry, Mr Solomon, could I just stop you for

a moment? All questions relating to liability

appear to have been determined, is that right?

MR SOLOMON: Well, that is the way His Honour has done it,

yes. He has made a determination on liability. He

did not have a trial before him where there was a

preliminary issue for liability.

TOOHEY J:	No, no.
MR SOLOMON:	He decided to do it that way against my

strenuous objection but that is the way he has done

it.

TOOHEY J:	And I take it your argument is that although, using the term loosely, "liability" has been
determined against your clients, absent proof of
damage and absent any reason why specific
performance should have been granted then,
nevertheless, judgment should have been entered for
Singh	25/10/90

the defendant or, perhaps, judgment for the

plaintiff for nominal damages?

MR SOLOMON: Well, with one step reaching that conclusion,

that because reopening could not be allowed,

how - - -

TOOHEY J: Just a moment, Mr Solomon. It is built in to

what I have put to you that reopening is not

allowed.

MR SOLOMON:	Yes.
TOOHEY J:	The matter goes back either for judgment for the

plaintiff for nominal damages or maybe for

dismissal of the plaintiff's claim.

MR SOLOMON:  Yes.

TOOHEY J: But is that what you are asking for in your

notice of appeal?

MR SOLOMON:  Yes. In the draft appeal in the back of the

book, page 137 there at the back, at the bottom,

(iii) -

TOOHEY J: Well, really, (iii) is your primary relief, is

it, not (i)?

MR SOLOMON: Well, (i) simply - is part of it.

MASON CJ: Is the grant of leave.

MR SOLOMON:  Yes, we needed leave to appeal because the case

was not finished to really deal with setting aside

the order made in the Full Court but the primary

relief is (iii) following setting aside the

Full Court's order that a final order be made, and

this is an appropriate case to do that in because

the one point that has been overlooked throughout

and the one point that is unassailable,

Your Honour, is this - I have made this point

throughout - when the plaintiff's case closed, one,

we could not be expected to make a plea of no case

because we would be put to an election and if it

was then upheld and it went on appeal, we would

then have to have a new trial. There is plenty of

authority that - we would have been put to an

election.	We did not want to be put to an
election.

So, throughout the period from when the case

closed in December until we presented all of our
case - not only that, until now we have our

evidence rejected - we have been in a position

where we cannot make a meaningful payment into

court which at that time, of course, would have

Singh 6 25/10/90

been considered both in respect of liability and

damages throughout that period. We were in no

position to make a meaningful payment into court.

We cannot be restored to the position where a

payment into court can ever be considered in the

light of the position where, one, we have not gone

into evidence at all and, secondly, where our

evidence has not been rejected or accepted by the

trial judge. That is clear prejudice.

I put that point at some length in the

Full Court, relying on Ketteman's case, and I see

the majority in Verwayen's case last month has now

clearly adopted the notion of Lord Griffiths in

Ketteman's case that costs is not always the healing medicine - I think Your Honour

Mr Justice Toohey used in that case, adopting

Lord Justice Bowen. So, on that basis one can see

now, the Full Court could see, the High Court can see - no point point to send this application for
reopening anywhere. It must have failed even if it

was properly dealt with. So, why send it back

there. For another point, it cannot go back to

His Honour Mr Justice Seaman or, at least, it

should not go back.	Reg v Watson; Ex Parte
Armstrong must apply.	He has determined that there
was no inadvertence.	He has determined there was

no prejudice suffered and if he were to consider a

full application and deal with prejudice he might

take evidence from my client, and he said he is a

liar. He said that in unequivocal terms in his

judgment.

How can His Honour be seen to the general public as an unbiased judge? How can the public

have confidence that a rehearing application on

that point could go back to him? It cannot.

TOOHEY J:  Can I put a couple of questions to you,

Mr Solomon? In the light of the way in which the

matter proceeded, had His Honour entertained an

application by the plaintiff to reopen the

plaintiff's case in order to call evidence as to

damage?

MR SOLOMON: General reopening, yes.

TOOHEY J: No, not general reopening; as to damage?

MR SOLOMON: General reopening as to damage; not the

specific document that he applied for which was all

he did, yes.

TOOHEY J: If I can resort to the expression I used a moment

ago: an application to reopen to call evidence as

to damage, whatever that evidence might be, I take

it that you would have opposed such an application?

Singh	25/10/90
MR SOLOMON: Absolutely.

TOOHEY J: Is it likely that the trial judge would have

refused the application if the evidence that was

lacking went only to the value of shares on a

particular day?

MR SOLOMON:  I think it is likely if he had properly, with

respect, considered the position of prejudice, that

he would have.

TOOHEY J:  I am not sure what you mean by "prejudice"?

MR SOLOMON: Prejudice in the sense I just mentioned. It

was not the applicant - it was not the defendant

who failed to call evidence.

TOOHEY J:	No.
MR SOLOMON:	So, we have run our whole case ever since - the

plaintiff's case closed months before knowing that,

"Well, there's no damages proved. Fine. We will

proceed." We run the case that way. Why should we

want to make a payment into court in the meantime?

We say we have got a head and tails case here now.

Heads we win and tails they lose. If we are

believed, it is dismissed and if we are not

believed, we get nominal damages.	We will proceed
with the trial because of their conduct.	We are

induced by that conduct. This is clear estoppel in

litigation.

Now, to allow them to reopen to prove the

damages, where can we ever be put back to where we

were when the case closed? We simply cannot.

Costs is no answer because throughout that period

we were not in a position to make a meaningful

payment into court. We were not in a position to

have a payment into court considered meaningfully

and that just cannot be compensated.

DEANE J: This is a real trial by ambush, that if somebody

forgets to prove something and the case goes on for

a while, the trial judge then cannot make an order

to reopen or, in this case, order an inquiry as to

damages.

MR SOLOMON: Well, there is no question of an inquiry.

DEANE J:  Why not? That was the ordinary method the equity

court proceeded.

MR SOLOMON:  Yes, but there is no question of an inquiry

where specific performance is not entertained.

Lord Cairns Act has never applied where - the

section is "where the court entertains a claim for

specific performance" but there is long authority

Singh 25/10/90

that where it is not of a class where the court

even entertains it, that Lord Cairns Act does not

apply. So, we are dealing with a common law claim.

I accept that the pleading and Wentworth's case

et cetera makes it perfectly clear that you can run

a common law claim for damages in the one action

but common law never knew inquiries; never has

known inquiries.

In fact, I referred below to a judgment of

Lord Justice Brett in a case called Ex Parte Moore:

in Re Faithful which said precisely that: comon

law never knew of inquiry. So, the only exception

to that, Your Honours, with respect, is the

statutory amendment by way of rules of court to

allow for preliminary trial on liability by way of

statutory amendment but, absent that, a common law

claim for damages stands on the claim. Where are

the hundreds of years of nominal damages cases
derived from? They are derived from people who did
not prove their damages, and there is nothing

exceptional in that.

When Your Honour says "this is ambush", with

respect, where have I ambushed anybody?

DEANE J:  I said your principle, if it meant that leave to

amend could not be given if a party had lost the

chance of paying into court in the meantime would

mean that the ordinary method of avoiding injustice

and trial by ambush would not be available. I was

not referring to this case, I was referring to the

principle.

MR SOLOMON:  No, I am not being in any way critical.

Your Honour, the answer to that is, I think, this

approach, that we are not the wrongdoer in this

respect. Amendment should be allowed; reopening

should be allowed if there is no prejudice.	It is
the identical position, really, in a funny way similar to what the majority in Verwayen has
decided; that if the prejudice cannot be
compensated, then costs will not be adequate.	So,
that is the way the case unfolded.

Unless it were to be suggested that we were

somehow obliged to do something in the meantime

rather than continue to run our case the way the

case had unfolded, it is simply a matter that one

looks at the application and looks at the principle

and says, "Can you allow this application at this

late stage without causing prejudice?"

TOOHEY J: But presumably none of your evidence went to

damage. You are not likely to have sought to cure

any defects in the plaintiff's case.

Singh 9 25/10/90

MR SOLOMON:  There was no damages proved to even ask for

them.

TOOHEY J: All right, yes, I understand that. And likewise,

I take it, none of the plaintiff's evidence really,

in the end, went to damage. So, what took place,

effectively, was a trial as to liability which was

determined against your client. Now, I can

understand your feeling of elation when the case

concluded on the basis that the plaintiff had not

led adequate evidence as to damage but if the judge

then and there had heard the parties and had said,

"No harm has been done so far, all the evidence

I've heard, all the argument that's been addressed

to me is on the question of liability and as to

that I find against the defendant. I propose to

allow the plaintiff to call evidence as to damage

but the plaintiff will have to pay any costs

incurred hereafter, and any costs incurred earlier,

if the defendant can show that they ought to be

payed by the plaintiff.", where is the prejudice?

MR SOLOMON:  Is Your Honour talking about the time when the

plaintiff's case closed or when the defendant's

case closed?

TOOHEY J:	When the defendant's case closed.
MR SOLOMON:	When the defendant's case closed?

TOOHEY J: Yes.

MR SOLOMON: Well, the prejudice is far less than it is now

but the fact of the matter is we have been declined

the opportunity to consider the case as it was, an

entire case for liability in damages and to have

any offer that we might make considered in the

light of the entire case, we have lost that

opportunity.

TOOHEY J: Well, that might be an argument for saying, "We

want to make a payment into court at this stage and

the plaintiff ought to pay all the costs to date."

MR SOLOMON:  Well, it might be one thing to be able to do

that.

TOOHEY J: All I am really saying, Mr Solomon, is you seem

to put out of mind that there may be mechanics by

which the court could, in the end, ensure that no

prejudice was caused to the parties.

MR SOLOMON:  Could I say in answer to that, Your Honour,

that there may well have been a position of what

you are saying that could have arisen immediately

at the end of the trial but by His Honour standing

the case for judgment and writing a 60-page

Singh 10 25/10/90

judgment and conclusively dealing with credibility

and liability the way he did, if the issue had been

resolved before His Honour had made a determination

on liability, if he had said, "Well, fine, I won't

decide anything. I won't let you know what I'm

thinking, I won't let you know who I have
accepted", et cetera, and he knew that was the
position as from the time of my address and my

friend knew it throughout the closing addresses, if

at that time it was said, "Well, I think there

ought to be a reopening application considered

before I make any judgment at all", I can accept

something of what Your Honour is saying but, now,

what His Honour did was, with all due respect, to

suggest to me that he was not going to do it, that

he was merely going to decide liability and not
reopening at all, went away and decided both of

them, decided against us and now, how can we make a

payment into court, because previously a payment

into court would have been considered on the basis

that the question of liability which was all

credibility ultimately was still in the air, would

be considered - - -

TOOHEY J:	The question of damages may not raise questions of credibility. It seems to turn upon the value of
the shares at a particular date as to which there
may be an argument.
MR SOLOMON:	That is true, but the payment in is dealt with

in respect of both matters. One can make a payment

in that falls to be considered both in respect of

liability and damages.

TOOHEY J: Well,-you speak of payment in. It could be done,

I suppose, by way of offer to consent and an argument then, at best, to the trial judge that the

plaintiff should bear either the whole or some

substantial proportion of the costs.

MR SOLOMON:  Yes. I do not think it .would be a payment in

because we would never admit liability.	We never
did admit liability, so we had to make payment in

under the rules rather than offer to consent. But

the point is, Your Honour - - -

TOOHEY J: Sorry, I am thinking of an offer to consent at

this stage, there being judgment against you on the

question of liability.

MR SOLOMON:  Yes, and at this stage, with a judgment against

us on liability, a payment in that we might have

made at an earlier time which would have been

viewed both in respect of a case which was up in

the air on liability and on damages, we can never

be restored to the position of having that payment

considered on that basis.

Singh 11 25/10/90

TOOHEY J: Could I ask you this, Mr Solomon, is there a copy

of the order or the judgment that was extracted

following the trial judge's decision available to

us?

MR SOLOMON: It is in the book, Your Honour.

TOOHEY J:	I rather assumed that that order - is that on 121, is it?
MR SOLOMON:	The order -

MR BENNETT: It is 121.

MR SOLOMON:  I see.

TOOHEY J:	No, but that is the application - that is the order following the decision of the Full Court.	I
am interested in the order that was extracted
following the judgment of Mr Justice Seaman.
MR SOLOMON:	Yes.	I do not know why that was left out of

the settled index.

MASON CJ:	It does not seem to be in the book.
MR SOLOMON:	What I can say to Your Honour, if it is not

there, and I have not brought it with me, but the

terms of it are identical to what is written at

page about 73 or 74 which was in His Honour's

reasons where he dealt with this and it really just

takes it verbatim.

TOOHEY J: Well, I would still be interested to know what

the judgment extracted said. For instance - - -

MR SOLOMON:  It says that he grants leave to reopen to prove

the price at which the shares could have been sold

at any material time. It simply adopted that

paragraph in the middle of page 73 of the book.	I
do not know if my learned friend has a copy of
that.	I do not have it with me.

MR BENNETT: It was not a judgment, Your Honour.

TOOHEY J: Well, that is really the point of my question,

Mr Bennett.

MR SOLOMON:  Yes, it is an order.

TOOHEY J: Well, I was not drawing a particular distinction

between "order" and "judgment" but rather to

inquire whether whatever was extracted contained

some sort of determination as to liability. I take

it from what you have said and Mr Bennett has just

said that that is not so.

Singh 12 25/10/90

MR SOLOMON:  When His Honour pronounced the judgment which

is at page 181 in the supplementary papers - it is

only one page when the reserve decision was
delivered - His Honour said:

I have dealt with every issue of fact that I am able to and every issue of law that I am

able to. I would, if the materials were

there, have awarded the plaintiffs damages,

but there are not materials there. I grant

the plaintiffs' application to reopen to

proved damages and there is nothing more I
can do but adjourn the trial to have it

brought before me -

so, in that sense he made it clear and in the

reasons he made it clear that liability was

determined although the order, as extracted, was

merely only to grant the leave to reopen. The

formal order does not provide for a judgment on liability. Indeed, there was never a case on a

preliminary point.

So, Your Honours, there are two points that

are worthy of special leave here. The first point

is simply this, that how can it properly be

suggested that where a party is denied natural

justice, that they have an obligation and not a

right - I would accept you have a right until the

order is extracted and the judge has a right until

the order is extracted to withdraw it and the

parties would have a right to go back and apply to

the judge if they wished to, but to say that a

party deprived of natural justice has an obligation

to go back to that judge and not to appeal is a

very serious erosion of the appellate function in
respect of natural justice and it should be stopped

and stopped immediately. And with a decision of the Full Court which commences such a principle, that is dangerous; it should be stopped and as I

said, in Cameron's case, one has an ex debito

justitiae right to set it aside is starting to get

horribly washed away and very quickly.

The other important issues which arise and

which are appropriate to deal with are that in this
case the way my learned friend dealt with the
matter: he pressed for specific performance until
the last; he pressed there were damages available

until the last; and there was no obligation by him

to reopen generally as to damages. He made one

application which was finished, and the matter

stood for judgment and it is a common law claim for

judgment. Although we have the proactive role of

the court in respect of preparation for trial in

expedited lists et cetera, surely that goes too far

Singh 13 25/10/90

when one starts not pronouncing a judgment on tr

way the case has been presented.

The third matter of leave importance is this,

and this was only dealt with by His Honour

Mr Justice Pidgeon in the Full Court, and that is

what is the appropriate principle where a case

stands for judgment and one applies to reopen
before judgment but after the trial? There was a

decision of His Honour the Chief Justice

Sir Albert Wolfe in this State which was referred

to and rejected by His Honour Mr Justice Pidgeon of

a three-fold test which was slightly expanded upon

by Mr Justice Muirhead in the Northern Territory in

a case called Figg which involves really a

four-fold test and it is a .very appropriate
question that needs to be resolve as a matter of

general importance in respect of civil procedure:

how such an application should be dealt with; what

are the appropriate principles.

TOOHEY J:  I must confess I do not immediately see the

relevance of those decisions which seem to me to go

to questions of fresh evidence - - -

MR SOLOMON:	Yes, that is right.
TOOHEY J:	- - - which is not really what we are talking

about here, are we?

MR SOLOMON: Well, it is because the trial finished. There

was no application on foot - no application to

reopen on foot.	The case was tried and stood for
judgment.

TOOHEY J: But the plaintiff has not been heard to say,

"There is evidence which I was not aware of. It

was reasonable that I was not aware of that

evidence. I now wish to call it." That is the

ordinary notion of fresh evidence, is it not?

MR SOLOMON:

Yes.

TOOHEY J: But that is not what we are talking about here,

is it?

MR SOLOMON: That is, indeed.

TOOHEY J: But how do we know -

MR SOLOMON: That is the point.

TOOHEY J:  We do not know what evidence the plaintiff wishes

to call.

MR SOLOMON:  Well, he made it clear. He just simply wanted

to call some evidence about what the price of the

Singh 14 25/10/90

shares was on the relevant day. That was what he

applied to do with a document that was

inadmissible.

TOOHEY J: Could I just ask you one other question for the

time being, Mr Solomon, and that relates to page

180 of the supplementary application book. This is

really the concluding remarks by the trial judge:

I will publish some reasons which will be

either the end of your clients' cause totally

because I shall dismiss their claim, or if I

find for them, then we are going to have to

fight on from there, I think. We're going to

have many more days.

Now, what are we to make of that?

MR SOLOMON:  Make of it exactly what Mr Justice Rowland made

of it that none of us - I am sorry, I will withdraw

that. I did not appreciate - and His Honour could

appreciate why I did not appreciate - that

His Honour Mr Justice Seaman was going to go away

and deal with the application for reopening. I

think he thought the whole question of reopening at

that stage - led me to believe he thought it - was

a matter of considerable problem.

There were other passages in that transcript

to the same effect, that we were going to be going

on for some days. You do not have to go on for

some days when all I am left with a position now is

proving a price and everything else has been done

in my absence and without my submissions.

TOOHEY J: But does that not suggest that if there is a

finding of liability then the trial judge will hear

further evidence and if that is so what could the

further evidence relate to but the question of

damages?

MR SOLOMON:  Further evidence and it was going to relate to

an application for reopening, I think, at that	stage. That is what I understood. The whole
complicated. There are other passages which demonstrate that.

questioning of reopening was going to be very

DEANE J: If you look at the way the suit is framed, it is

framed as a suit for specific performance.

MR SOLOMON:  Yes.

DEANE J: And in lieu of specific performance, damages.

MR SOLOMON:  And, alternatively, damages.

Singh 15 25/10/90

DEANE J:  No, the second prayer is "damages in lieu

of" - - -

MR SOLOMON:  Yes, and then the third one is "damages."

DEANE J: Well now, I hear what you say about the equity

court not entertaining claims for specific

performance of sales of shares listed.	As I say, I
hear what you say about that.	I do not comprehend

it, I must confess. If, in an action for 300,000

identified shares in a company it appeared that

there was a special reason why specific performance

should be granted, it would be granted in relation

to shares. The equity court does not lack

jurisdiction to grant specific performance of such

an agreement. That being so, the ordinary course

of an equity court, particularly where it possesses

common law jurisdiction as well, would be to deal

with specific performance and if it were refused

then to come to the question of damages.

MR SOLOMON:  Yes, I think the problem is that the earlier

cases and perhaps - no doubt, Your Honours are

aware of them - I dealt with them at some length in

the Full Court submission - was that really where

damages are adequate that it was treated as going

to jurisdiction.

DEANE J: Yes, but the case of a large parcel of shares,

there is no presumption that damages will be

adequate.

MR SOLOMON: Well, there is some authority to the contrary,

but - - -

DEANE J:  I mean, if these shares represent a controlling

interest in the company, specific performance would

be granted as a matter of course because damages

will obviously be inadequate.

MR SOLOMON:	Your Honour, I will take all that on board and assume that all happened and assume all of those
factors had been established before His Honour,
which they were not, but assume they were, they are
all matters to be raised and surely an
inquiry -

DEANE J: All I am really suggesting to you is that your

surprised indignation does not come through as

completely convincing to me when I read the claim

and what happened in the transcript in that as I

read what His Honour said at those pages, what

His Honour was planning to do was quite apparent,

it may well be you had legitimate ground for

objecting to it.

Singh 16 25/10/90

MR SOLOMON:  I am sorry, when you say what he was planning

to do was apparent - - -?

DEANE J: At page 179 to page 180.

MR SOLOMON:  Yes.

DEANE J: True it is that His Honour should have returned

and said, "Having dealt with those issues,

Mr Bennett, do you wish to make an application to

lead evidence as to damages?" And I would have

thought if the application was made it would

inevitably have been granted in the situation where

the only evidence was evidence of the value of

shares and where the primary claim had been for

specific performance.

MR SOLOMON: Well, Your Honour, if one looks at 1206A in the

transcript which, in the book, is at 169 - - -

MASON CJ:	What page?
MR SOLOMON:	Your Honour, in the book at page 169 at the top

there, that my learned friend was suggesting - this

is right at - well, if one goes back to page 167

where these questions about the problems, in the

middle of the page there, that His Honour was

testing whether the claim was really there and he

said at about point C:

quite apart from the factual issues in this
case, because of the way you and your clients

have wanted to play the hand about specific

performance -

that is pressing it -

you are running into some very difficult and

complex areas. They are very interesting, but

I don't know that they are really corning up in

the shape and at the time that they're best

dealt with.

And our learned friend responded. He took the -

observation to be what it is. I can't respond

to that other than to say that the submissions

that we rnake .... arise now because now is the

end of the case.

And he then says, "How do you want to do this,

assuming you are right on liability?" He said,

"Well, we want to establish liability" and he then

suggested, "If you want to make an order for an

inquiry, you can do that." But at the bottom of

page 1204 he is still saying it is a case that

warrants specific performance. We make our claim

Singh 17 25/10/90

out but over at 168 he says, "If Your Honour feels

that it does justice to any claim - order that does

justice, we will go along with." Then just at the

end, as a final comment at the top of page 169, my

friend reminds His Honour, "This matter involves
reputations in respect of the defence; it is an
expedited matter and we'd ask it to be done as

swiftly as possible" and His Honour says:

It might be easier for me to resolve it as

swiftly as possible, Mr Bennett, if the end

game weren't unfolding with all these

complexities. One might do better by saying,

"Well, make a decision about the primary
issues and reserve, subject to jeopardies as

to costs and subject to questions of inquiry,

the end game," but you don't seem to want to

do that. You want your cake and eat it and

you want a quick result and I'm sensitive to

those matters, but the way it's coming before

me is not apt as you go, the way you're going,

to get a quick result.

And he then says:

A quick result would be a result on the issues

of liability and fight out - and it might take

some days after that as well - fight out the

end game.

My friend then says:

If I'm forced to elect -

"I'll take the quickest result". So, His Honour

says at the bottom of the page:

The only way I can give you a quick

answer ..... would be to bring down a judgment

on the primary issues and reserve for further

argument a number of questions which I think

are quite difficult and you will understand

that might have a consequence at a later stage

as to costs.

So, His Honour then came back to that at the

passage Your Honour has taken me to at the very

end, saying, "What we are going to be doing is be

going on from there for some days", that my

apprehension of what was being done was there was

going to be a decision which I urged him not to do

but he wanted to do in the interests of expedition,

to decide liability only, and all of these other

matters would be resolved by further argument

which, between that day and the day when the

decision came down, had all changed and it turned

Singh 18 25/10/90

out to be an order granting an application for

leave to reopen that I had not addressed on.

That is really quite an extraordinary result,

but to suggest that - to come back to what

Your Honour Mr Justice Deane said, if Your Honour

does not apprehend any type of prejudice on our side

in the action continuing throughout our case with no

proof of damages on the other side - - -

DEANE J:  What I was suggesting was I would regard it

inconceivable that any judge at first instance,

dealing with this matter would, at the end, say, "I
refuse specific performance and on the technical

ground that there is no evidence of the value of

the shares I will immediately enter a verdict in

circumstances where I have said before I adjourned

'I will deal with questions of liability and we

will take it from there'". I mean, modern courts

simply do not work on the basis that the justice to

the parties can be distorted by either an oversight

or incompetence on the part of counsel which is

obvious.

MR SOLOMON: As I said below, the previous tests in respect

of inadvertence at that stage when the trial has

finished - has dealt with inadvertence of counsel
in dealing with material available to him, for

instance, if he had some answers to interrogatories

on the desk and he forgot to put them in, but where

the material was not even available - - -

TOOHEY J: It does not seem to matter a great deal, really,

whether it is inadvertence or not. Those are matters that can be cured, if they need to be

cured, by costs and other orders. But if you look

at section 25(10) of the Supreme Court Act it

provides, as you know:

In all cases in which the Court entertains an

application for ..... specific

performance ..... the Court may,· if it thinks

either in addition to or in substitution	fit, award damages to the party injured,
for ..... specific performance, and such damages may be assessed in such manner as the Court
directs.

MR SOLOMON: That is right. It turned on the word

"entertains", that there were a number of cases -

they are actually in my supplementary book at

page 204 - many cases where the word "entertains"

has been held to mean "jurisdiction" and adequacy

of damages has been held to go to jurisdiction.

But where damages was adequate, the jurisdiction

for the equitable court to step in and grant

specific performance, auxillary to common law, just

Singh 19 25/10/90

simply did not arise and if the jurisdiction did

not arise, that was the meaning of the term

"entertains" so that in that sense equitable

damages do not arise at all as a common law claim.

I do not doubt that the claim is properly put in

common law as well but - Your Honour, in the

supplementary book at page 204 where I had some

lengthy written submissions in the court below

which I have put in that supplementary book, the

authorities are referred to there on that point.

Thank you, Your Honours.

MASON CJ:  The Court need not trouble you, Mr Bennett.

The Court is of opinion that the prospect of

this appeal succeeding is not such as	to warrant
the grant of special leave to appeal.	The
application is therefore refused.

MR BENNETT:	I seek an order as to costs.
MASON CJ:	You do not oppose that, Mr Solomon?
MR SOLOMON:	No.
MASON CJ:	The application is refused with costs.

AT 4.56 PM THE MATTER WAS ADJOURNED SINE DIE

Singh 20 25/10/90