Smith v Australian National Line Ltd

[2000] HCATrans 204

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M35 of 2000

In the matter of –

An application for Writs of Certiorari and Mandamus against THE HONOURABLE DONALD GRAHAM HILL, THE HONOURABLE ROSS ALAN SUNDBERG and THE HONOURABLE JOHN RONALD MANSFIELD, Judges of the Federal Court of Australia sitting as a Full Court

First Respondents

THE JUDGES AND REGISTRARS OF THE FEDERAL COURT OF AUSTRALIA

Second Respondents

EDENSOR NOMINEES PTY LTD

Third Respondent

YANDAL GOLD PTY LTD, YANDAL GOLD HOLDINGS PTY LTD, NORMANDY MINING LIMITED, NORMANDY MINING FINANCE LIMITED, NORMANDY CONSOLIDATED GOLD HOLDINGS PTY LTD and NORMANDY MINING HOLDINGS PTY LTD

Fourth Respondents

Ex parte –

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Prosecutor/Applicant

Office of the Registry
  Melbourne  No M38 of 2000

In the matter of –

An application for Writs of Certiorari and Mandamus against THE HONOURABLE JUSTICES DONALD GRAHAM HILL, ROSS ALAN SUNDBERG and JOHN RONALD MANSFIELD, sitting as the Full Court of the Federal Court of Australia

First Respondents

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Second Respondent

YANDAL GOLD PTY LTD, YANDAL GOLD HOLDINGS PTY LTD, NORMANDY MINING LIMITED, NORMANDY MINING FINANCE LIMITED, NORMANDY CONSOLIDATED GOLD HOLDINGS PTY LTD and NORMANDY MINING HOLDINGS PTY LTD

Third Respondents

Ex parte –

EDENSOR NOMINEES PTY LTD

Applicant/Prosecutor

Office of the Registry
  Melbourne  No M39 of 2000

In the matter of –

An application for Writs of Mandamus and a Writ of Certiorari against THE HONOURABLE JUSTICES DONALD GRAHAM HILL, ROSS ALAN SUNDBERG and JOHN RONALD MANSFIELD, sitting as the Full Court of the Federal Court of Australia

First Respondents

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Second Respondent

EDENSOR NOMINEES PTY LTD

Third Respondent

Ex parte –

YANDAL GOLD PTY LTD, YANDAL GOLD HOLDINGS PTY LTD, NORMANDY MINING LIMITED, NORMANDY MINING FINANCE LIMITED, NORMANDY CONSOLIDATED GOLD HOLDINGS PTY LTD and NORMANDY MINING HOLDINGS PTY LTD

Applicants/Prosecutors

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 28 APRIL 2000, AT 9.30 AM

Copyright in the High Court of Australia

__________________

MR R.D. STRONG:   If it please the Court, I appear for the Australian Securities and Investments Commission.  (instructed by the Australian Securities Investment Commission)

MR P.R. HAYES, QC:   If your Honour pleases, I appear with MR I.D. MARTINDALE, for Edensor Nominees Pty Ltd.  (instructed by Clayton Utz)

MR N.J. YOUNG, QC:   May it please your Honour, I appear with MR M.C. GARNER for Yandal Gold Pty Ltd, Yandal Gold Holdings Pty Ltd, Normandy Mining Limited, Normandy Mining Finance Limited, Normandy Consolidated Gold Holdings Pty Ltd and Normandy Mining Holdings Pty Ltd.  (instructed by Freehill Hollingdale & Page)

HIS HONOUR:   The course I propose to take with the three matters is this:  my present inclination is to direct in each of these matters that the application be made by notice of motion to a Full Court; that direction being made under Order 55 rule 2.

There are then some particular aspects of the individual applications that I would want to take up with counsel but can I turn first to the question of whether I should make a direction under Order 55 rule 2.  Does any party want to be heard against my taking that course?

MR STRONG:   No, your Honour.

MR HAYES:   No, your Honour.

MR YOUNG:   No, your Honour.

HIS HONOUR:   Well, in each of the matters there will be a direction that the application be made by notice of motion to a Full Court.  It will, of course, be necessary, ultimately, to adjourn the applications for the giving of notice of that application.

Can I turn then to each of the matters and take them in the order in which they are filed and just raise some matters that struck me on looking at the papers.  First, Mr Strong, your application.  Am I right in understanding from the material that has been filed that in the Full Court of the Federal Court there were no relevant cross-appeals or notices of contention or other process of that kind that would need to be made available to the Full Court of this Court?

MR STRONG:   That is so, your Honour, there were no such processes.

HIS HONOUR:   Yes.  So that, in effect, the last version notice of appeal will be a sufficient identification of the issues that were raised before the Full Court of the Federal Court?

MR STRONG:   Yes, your Honour.

HIS HONOUR:   Now, it would seem to me that when you come to give notice of motion, pursuant to the direction under Order 55 rule 2, it will be necessary to restate in that notice of motion the grounds on which you rely and, no doubt, restate the relief which you seek which, I take it, in the case of certiorari, is certiorari to bring up and quash?

MR STRONG:   Yes, your Honour.  I have taken the liberty of preparing an order in the form of a direction to make application by the way of notice of motion.

HIS HONOUR:   Yes.  Thank you.  I take it other counsel are, I see, now getting the directions.  It struck me, Mr Strong – and this is no more than a matter of first and idle impression – that the grounds specified may not make at least abundantly clear, at least to the quick and casual reader, the basis on which certiorari to quash would go.  Is it asserted that there was jurisdictional error in making the orders of 9 March or some other basis of that?  These are questions that I do not think we need to debate or need to resolve today.  All that I am concerned about is that, when it does come on before the Full Court, so far as possible we can avoid unnecessary debate about the way in which you are proposing to put this aspect of the case.

MR STRONG:   It would be put, your Honour, both on the basis of jurisdictional error and on the basis of error of law on the face of the record. 

HIS HONOUR:   It may be, I simply do not know, that you may think there is advantage in recasting the grounds slightly to make that perhaps a little clearer.  I do not expect you to do that on the run now.  It may be that the form of order that ultimately made today is no more than a direction that the application be made by notice of motion and that would give you time to think about whether there is any substance in these points and, if there is, give you time to draw them in a form that you are happy with without me sitting here staring balefully at you while you do it.

MR STRONG:   Thank you, your Honour.

HIS HONOUR:   Otherwise, is there any other aspect of your application that you think needs attention?

MR STRONG:   No, your Honour.

HIS HONOUR:   It seemed to me, at first blush at least, that all of the material on which you would want to move was there but is there any suggestion that you would want to have access to any bits of the transcript of proceedings below or any further bits of the processes that happened below other than are exhibited to your supporting affidavit or would appear otherwise in the application for special leave?

MR STRONG:   We gave consideration to those matters in preparing the application, your Honour, and we felt that what we had put forward was what we needed.

HIS HONOUR:   Yes.  I am not conscious of any omission.  It is just better that these things are thought of now rather than on the run in the Full Court.  Thank you, Mr Strong. 

Mr Hayes, your applications, it seemed to me, appeared to be cast, at least from the way the supporting affidavit was worded, as if they were in some way additional grounds.  Now, again, I do not expect you to answer in any way intended to bind you but the notice of motion which is issued should, I think, be freestanding.

MR HAYES:   Yes.

HIS HONOUR:   So that all of your grounds, even if they are grounds appearing in other applications, are to be found in your notice of motion, so that there is then no doubt of the basis on which your are moving.

MR HAYES:   Yes.  I can actually explain that now.  When we swore the affidavit, it was our contemplation that it might be practical to ask to have our grounds added into ASIC’s.  On reflection, that did not seem practicable but the reason for the expression “additional grounds” was that we had that in mind.  We have taken the view that it has to be freestanding and we take your Honour’s point, our notice of motion will be freestanding in all grounds.

HIS HONOUR:   Yes.  But in the end it will not, I suspect, add to the burden much and there will then be no doubt though of the way in which you are putting your limb of the case.

MR HAYES:   Yes, thank you.

HIS HONOUR:   The other matter that, again, struck me, on an unduly quick reading of the papers, was that it seemed to me that your papers may raise a question about whether you are in fact seeking prerogative remedy against the reasons for judgment rather than the judgment.  Now, again, you need not answer now but at least at first blush it would seem to me that prerogative relief goes in respect of orders, true it is, and judgments but judgments in the senses of judgments rather than reasons for judgment.  Again, these are matters for you to consider lest they burst upon us unawares at a later date.

MR HAYES:   Thank you, your Honour.  Again, your Honour, it comes back to the same difficulty we had in articulating our concern before your Honour and Justice Gaudron that our difficulty lies in large part in what was not ordered as distinct to what was ordered. 

HIS HONOUR:   Yes.  That, I assumed, was something that would lead, perhaps, to mandamus going.

MR HAYES:   Yes.

HIS HONOUR:   Mandamus to hear and determine according to law.

MR HAYES:   But we are grateful for your Honour’s indication and we will carefully consider that.

HIS HONOUR:   It is really a question rather than a statement in the form of a question, Mr Hayes, so do not attach too much weight to it.  Thank you.

MR HAYES:   Thank you, your Honour.

HIS HONOUR:   Now, Mr Young, I do not think that there is anything further that arises in respect of your application except, perhaps, as a matter of abundant caution you might need to give 78Bs again, might you not, in respect of this process?

MR YOUNG:   We have thought of that, your Honour, and we take the view that we should as a matter of caution.

HIS HONOUR:   It really is duplication, I suspect, but if it is given nobody can complain about it, can they?

MR YOUNG:   No.  We took the view that we should.  We expect no different outcome will follow but we will take that course, your Honour.

HIS HONOUR:   Yes.  Thank you, Mr Young.  It seemed to me that there may be advantage if the solicitors for the three parties could, sooner rather than later, get together and give some joint consideration to how we should put the application book together rather than coming up before the Deputy Registrar with no formulated ideas about it. 

Again, it seemed to me that it may be possible to produce a single application book which would cover not only the applications for special leave but also these applications for prerogative remedy and that if that were to be done, presumably the application book would be put together in the form of documents relating to the trial stage of the process, documents relating to the Full Court of the Federal Court stage of the process and then documents relating to the High Court stage of the process.  We could, in that way, perhaps, do away with duplication of reasons and other material.  But, again, I would not want the parties to think that that represents some formed and definite view on my part, it simply does not.

The solicitors and counsel, I suspect, are going to have a much better idea of how to put together a convenient and workable application book.  Those are simply my thoughts.  If the three solicitors could confer sooner rather than later, come up with some joints ideas and come before the Deputy Registrar with those joint ideas formed, so much the better.

Now, I think rather than make an order in quite the detail that you proposed, Mr Strong, what I would be inclined to do would be simply to direct in each matter, pursuant to Order 55 rule 2 of the Rules, that the application be made by notice of motion to a Full Court.  I would adjourn each application so that notice of the application may be given accordingly.  I would reserve the costs and certify for the attendance of counsel.

Does any party wish to be heard about the form of those orders? 
No?  Does any party see advantage in raising any other matter in relation to these three applications at this stage?

MR HAYES:   The general cry will be when?

HIS HONOUR:   I cannot advance that beyond where we were at the close of the application for special leave.

MR HAYES:   We have to have our runners and be ready to go?

HIS HONOUR:   Well, the sooner you are prepared, the less there is an impediment in putting it in but cases have been fixed up to an including, I think, the Brisbane sittings in June.  When the matter can be taken will be a question depending on the other business the Court has to deal.

MR HAYES:   What, our solicitors will liaise with the Registry about that?

HIS HONOUR:   Yes, Mr Hayes, and, again, if it were possible for the parties to come up with an agreed contents of the application book then the preparation of it will be so much the easier and so much the quicker, I would have thought.

MR HAYES:   Thank you, your Honour.

HIS HONOUR:   Yes.  Is there any other matter that counsel wish to raise?  No?  Then there will be orders in the terms I have indicated, and I will adjourn.

AT 9.48 AM THE MATTER WAS CONCLUDED