Southern Cross Exploration Nl & Ors v Fire and All Risks Insurance Company Limited

[1991] HCATrans 105

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl20 of 1990

B e t w e e n -

SOUTHERN CROSS EXPLORATION NL ALEXANDERS SECURITIES LIMITED,

CHAPMANS LIMITED, ALEXANDERS

DISCOUNT PTY LIMITED, and AVIVA

HOLDINGS LIMITED

Applicants

and

FIRE AND ALL RISKS INSURANCE

COMPANY LIMITED, NATIONWIDE

RESOURCES PTY LIMITED, DAVID

HARRY LANCE, PETROZ NL

formerly known as Offshore Oil

NL) and THE ADMINISTRATOR OF

THE ESTATE OF THE LATE LAWRENCE

JAMES ADLER

Respondents

Application for special leave

to appeal

BRENNAN J

S-Cross 1 19/4/91

DEANE J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 APRIL 1991, AT 11.03 AM

Copyright in the High Court of Australia

MR B.R. RAYMENT, QC:  May it please Your Honours, I appear

with my learned friend, MR P. LANIGAN, for the
applicant. (instructed by Nugent, Wallman &

Carter)

MR P.G. HELY, QC: If the Court pleases, I appear with my

learned friend, MR P. DEA.KIN, for the respondent.

(instructed by Blake Dawson Waldron)

MR RAYMENT:  Your Honours, would it be convenient if I

handed up now three copies for Your Honours and an

additional copy for the Court, of some materials.

They include, as the first item, Your Honours, a chronology, which is taken largely from that which

appears in the application book. I am indebted to

my learned friend Mr Hely for drawing my attention

to one matter about it which should be corrected.

Would Your Honours please disregard the second

sentence which appears under the heading, "10th

September 1985". It is correct that

Mr Justice Kirby said that, but the previous

sentence is correct rather than that sentence, as a

matter of fact.

Your Honours, the bundle also includes several cases to which it may be necessary to refer and the

particulars which were furnished by 30 May 1986,

which have been for some reason omitted from the

application book.

BRENNAN J:	You say the particulars are here?
MR RAYMENT:	Yes, they are there.
TOOHEY J:	We have the order for particulars, Mr Rayrnent, is that the document that you are referring to?
MR RAYMENT:	Does it have 291 -

TOOHEY J: Yes.

MR RAYMENT: It starts off as, I think, a recounting of the

order and then continues to purport to provide the

particulars ordered.

Your Honours, there are two main submissions

we wish to make on the hearing of this application:

the first depends primarily upon section 35A(b) of
the Judiciary Act and that is a submission that one

of the two orders of Mr Justice Waddell was, we

submit, a final order and the Court of Appeal ought

not to have held to the contrary; that is, the

order refusing to declare that the suit stand did

not stand dismissed. And then, a second submission

will be that they will be based upon both limbs of
section 35A, with respect to a matter of practice

in the hearing of leave applications, we wish to

S-Cross 2 19/4/91

submit that the court erred in failing to give

effect to the principle enunciated clearly in this

Court in Bucknell's case about what one does with

leave applications and interlocutory matters where
the real effect - leave aside the legal effect - of

the order in respect of which leave is sought is to

finally dispose of the case.

Your Honours, the order of Mr Justice Waddell

refusing to declare that the action does not stand

dismissed gives rise, in our respectful submission,

to a res judicata to an issue estoppel on the

question whether the self-executing order took

effect; that is, unless and until - and we are now

talking really in terms of legal theory - some

judge extends the time for compliance by the

applicant with the orders made by Mr Waddell on
23 March 1986. His decision that the proceedings

stand dismissed is a final order, in our

submission. It sterns from two propositions:

firstly, his own finding that the particulars were

not supplied by the relevant date, that is

30 May 1986; and, secondly, his own refusal to

extend the time further in the circumstances of the

case. And one can see his chain of reasoning at

pages 20 and 21 of the application book, having

first refused the motion for an extension of time,

line 20, His Honour goes on to say:

This means that further consideration

must be given to the plaintiffs' second notice

of motion claiming a declaration that the

proceedings have not been and do not stand

dismissed.

And for that purpose His Honour comes to a view

about the document which had been filed by

30 May 1986 and says that it was not compliance

with his order and concludes, at page 24 that:

the notice of motion seeking an order that the

proceedings do not stand dismissed should -

therefore -

also be dismissed.

DEANE J: If the proceedings had been dismissed how could

there be a notice of motion for a declaration that

they had not been dismissed?

MR RAYMENT:  They were alive, in our respectful submission,

on any view of the matter, and quite apart from any

question of extension of time, at least for the

purpose of deciding whether or not the conditions

of the self-executing order had or had not been

complied with.

S-Cross 19/4/91

DEANE J: But that is the problem and the undesirability of

a self-executing order, that it is self-executing,

which means as a matter of theory the fact that it

was a self-executing order is neither here nor

there to the question whether you can bring a

notice of motion. I mean, assume the order had

been that the proceedings are dismissed: what

would be the status then of a notice of motion

seeking a declaration that the proceedings had not

been dismissed?

MR RAYMENT:  One would think one had, on any view of it, a

final order, to which the only remedy would be an

appeal - - -

DEANE J:	Or new proceedings.
MR RAYMENT:	unless the dismissal was not to operate

as a bar.

DEANE J:  Or new proceedings.

MR RAYMENT:  Or new proceedings. Your Honours, that which

was said in the Court of Appeal to produce the

result - and I want to go in due course to

Mr Justice Handley's decision on this matter in

particular - that the order to which I refer was an

interlocutory order was, first of all, the fact

that there could be later another application to

extend the time.

Now, in our submission, the effect of such a

proceeding as that would be, in effect, to bypass

or set aside or vary the order which would stand as

a valid and final order until such time as such a

thing occurred. Pepper v McNiece, in our

respectful submission, and Clyne's case in this

Court, of which I have provided copies in the

material handed up, are authority, we submit, that
where the effect of the legislative or other

provision is that an order which is final for the

time being is liable to be set aside at any time on

a further application to the court, that will not

detract in any way from it being held to be a final

order for the purposes of these rules. And in

Pepper v McNiece it was so held; in Clyne's case

it was so held; and there was a case under the

moratorium legislation which is set out in the

headnote of Pepper v McNiece.

The statute provided that the order of a

magistrate should be final but then provided that:

"The court may reconsider any matter which has

been dealt with by-it, or rescind, or vary any

decision or order previously made by it."

S-Cross 4 19/4/91

This Court held that is nevertheless a final order unless and until some order setting aside the order

is made. And, similarly, a bankruptcy order is

regarded as being revocable but until revoked is
regarded as a final order, as Clyne's case

confirmed.

The fact that there is in legal theory the

possibility of some alteration being made to the

order of dismissal or to the declaration that the

suit stands dismissed is no reason, in our

respectful submission, not to hold that the

decision of Mr Justice Waddell is a final order.

BRENNAN J: That may be so in relation to the self-executing

order but you find your final order there.

MR RAYMENT:  You find one final order there, in our

respectful submission, and when the court

adjudicates upon the outstanding question, that is

"Is the condition satisfied?'', you find another

one.

BRENNAN J: But does the court adjudicate on that?

MR RAYMENT: It did here. His Honour looked at the

particulars, said they did not comply with his

order and, therefore, in effect, held that the suit

was dismissed under the self-executing order by

refusing to declare that it was not.

BRENNAN J: Held that the suit had been dismissed under the

self-executing order.

MR RAYMENT:  Yes, Your Honour, that being a live issue

between these parties.

BRENNAN J:	Or being an issue which the parties sought to agitate but if the self-executing order operated
according to its terms it had already been determined.

MR RAYMENT:  Someone must be able to determine, in our

respectful submission, whether the self-executing order has come into force or not; that is to say

whether any conditions attaching to it have been

fulfilled. And the judge who made the self-

executing order has presented to him the documents

relied upon, on one side, as a satisfaction of the

order; on the other side, as proof that it has not

been complied with and that the suit is therefore

dismissed. We submit his determination of that

issue is itself a final order which, unless someone

circumvents it by making a further application for

extension of time later.

S-Cross	19/4/91
DEANE J:	But is there not a proper procedure for that

though, Mr Rayment? I do not know but I would have

thought it was something like a motion for final

judgment not a notice of motion for a declaration?

I mean, you would have looked at it but it just

seems to me that it is quite a strange notion that

after a self-executing order is said to have taken

effect, instead of moving for formal judgment or

something you take out a motion for a declaration.

MR RAYMENT:  It may be that the moving party for judgment would have been the other party to the case. My

client, however, in our submission, should be able

to provoke a determination of the issue.

Mr Justice Handley, I think, remarks that it is an

issue that could have arisen in a number of ways in

the supreme court but we submit that whatever way

it arose, if that question fell for determination,

in truth, you, by deciding it the way

Mr Justice Waddell decided it, you gave rise to a

final order. After all, these parties certainly

have an issue estoppel as a result of Mr Justice

Waddell's determination on the question unless this

appeal is allowed to deal with it. They certainly

have an issue estoppel on the question whether

there was compliance with the self-executing order

so as to bring it into effect.

Your Honours, in our respectful submission, not only is it right to say that the motion to

which we refer was a motion for a final order or,

rather, that the order was itself a final order,

but, caught up with the determination of an appeal
which, we submit, therefore lay as a right to the

Court of Appeal, would be the correctness of the

interlocutory order which was in part its

foundation; that is, the interlocutory order

deciding to refuse an extension of time.

Your Honours, Mr Justice Handley deals with

this matter at pages 64 and 65 of the application

book - perhaps the foot of page 64, line 20.

His Honour says:

The second order made by the Chief Judge that

is sought to be appealed from was the

declaration that the action had been dismissed

with costs on 30 May 1986 by the operation of

the self-executing order. That declaration

necessarily precluded any further application

to the Court for a contrary declaration but in

my opinion was nevertheless interlocutory.

It not only precluded any further application to

the court for a contrary declaration, it proceeded

on the basis that a certain state of facts

obtained. His Honour then said:

S-Cross 6 19/4/91

The declaration itself did not finally dispose of the rights of the parties in the action.

There was only one hope, as it were, left to the

plaintiff, His Honour having refused the extension

of time, which was to have a finding that what had

been filed by 30 May 1986 was within the order.	In
our respectful submission, it was something which
brought the case to finality in the circumstances.
then His Honour said:

Thus it did not itself foreclose the possibility of an extension of time for

compliance with the self-executing order being

applied for and granted.

That is, in our respectful submission, to overlook the line of country starting with Pepper v McNiece

to which we have referred. His Honour goes on to

say:

The rights of the parties in the principal

cause had been finally determined by the

dismissal of that action. The declaration

therefore did "not deal directly with the

rights in contest in the action".

In our respectful submission, it plainly did in

that it concluded that the suit did stand dismissed

by reason of the self-executing order having regard

to what was done thereafter. Then His Honour

observes that it was resolved on the particular

motion:

purely as a matter of convenience -

and that it could have been done in a number of

other ways. There does not appear to be a

preferred way suggested by His Honour as to how it should be done. But whatever way it was resolved,

in our respectful submission, when it was resolved,

the determination of it would have the character of finality.

Your Honours, we submit that some support for

such a view, by analogy, is to be found in the

Anshun case - the first of the two Anshun cases, of

which we have, I think, handed up a copy -

147 CLR 35. It was the question of competency of

the main Anshun appeal. There, Mr Justice McGarvie

in Victoria had ordered that proceedings in the

action be stayed as an abuse of process on the ground that the earlier litigation between the

parties had given rise to all relevant issues
between the parties which should have finally

disposed of the rights asserted in the subsequent

S-Cross 7 19/4/91

clause. That judgment was characterized in this

Court as - and I read the last paragraph:

It seems to me that in the present case,

as a matter of reality, the order made does

finally dispose of the rights of the parties,

and on that ground I would consider it to be a

final order so that the objection to

competency in my opinion ought to be
overruled.

It is similar, in our respectful submission, to that which occurred before Mr Justice Waddell.

Your Honours, if that be right, then what has

occurred here is - I should add, perhaps, if it be

sufficiently arguably right, what has occurred here

is that a litigant who has been in the court

for 97 days of hearing and has provided security
for costs for the future conduct of the action, and

who apparently has sought to comply with the order

by instructing his legal advisers to prepare a

document, is, in effect, precluded from appealing

from an order which has the effect in reality of
disposing of his cause of action by this refusal of

the Court of Appeal to decide that the appeal is

from a final order and we would submit that that

would be prima facie within section 35A(b) of the

Judiciary Act, if those facts were right.

BRENNAN J: Also it is a view that has been expressed about

whether or not the condition was fulfilled or not

by Mr Justice Mahoney and Mr Handley, was it not?

MR RAYMENT:	Yes.
BRENNAN J:	Do you not have to show that there is some

special quality about that.

MR HANDLEY:  Yes, I want to come to what might be called the future merits of an appeal, if leave were granted,

immediately, Your Honour. First of all,

Your Honours, can I go straight to those

particulars and could I draw attention to their

context.

Your Honours will see from that chronology

that what occurred in this trial was that after it

had gone on for some 97 days - I think at least two

of Your Honours were previously made aware of the

facts of this case in the earlier appeal - there

emerged in some way before His Honour evidence that

some documents, the existence of which had been

apparently previously not been made apparent to the

plaintiff, became apparent to both the court and to

the parties, and His Honour first of all ordered

that further discovery take place in· consequence of

S-Cross 19/4/91

that discovery. And it provoked, in counsel then

appearing for my client, an application to set
aside the entirety of the proceedings or,
alternatively, for leave to reopen them.

That application - as one can see from the chronology - took a very long time itself to be disposed of and was unsuccessful in its first

respect; that is to say Mr Justice Waddell refused

to order that the trial start again, presumably

before another judge. He, with respect to the

proceeding for leave to reopen, made this direction

originally not as a self-executing order of

dismissal but simply as a direction for some
particulars to be given. In other words, the

context in which the particulars were directed to

be provided was really, as part of an argument not

yet dealt with by His Honour, put by my client

below as to whether it should have leave to reopen

and on what terms. His Honour said, "You specify

in detail what you want to put about your

application for leave to reopen and you indicate

which witnesses you wish to have recalled and for what purpose.", so that His Honour could consider

my client's application for leave to reopen.

The first proposition we put forward about an

order for the provision of detailed particulars is

that if the particulars were obscure, inadequate or

insufficient, the consequence would be not that

there would be non-compliance with the order,

because they had put forward whatever they wished

to put forward in support of their argument, but

that the application for leave to reopen would

either be refused or be allowed to occur on limited

grounds.

BRENNAN J: That is a good argument against the order of

23 March but no appeal has been brought against

that.

MR RAYMENT:

We would simply submit it goes to the

construction of what was being ordered to be

provided on 23 March. It is not, in other words,

an order for particulars of something which is

already in a pleading in a case where the pleading

is going forward to trial. It is an order for

particulars of arguments which one party or the

other desires to put forward. Although the word

argument is not used, its context is that it was

directed as part of an application for leave to

reopen made to His Honour by the then counsel for
the applicant. In other words, we submit that one

should understand His Honour's order for detailed

particulars in that light and not divorced from

that fact.

S-Cross 9 19/4/91

The next proposition that we put about the

particulars is this and, Your Honours, can I draw

attention to the fact that this matter - the second
proposition - has been considered by another Court

of Appeal in this very matter when the case first

went to the New South Wales Court of Appeal - I

hand up a copy of it; that is the same case,

(1986) 7 NSWLR 319.

There, the original orders of

Mr Justice Waddell on these two motions were before

the Court of Appeal by leave for the first time and

from the way in which the court disposed of one of

the notices of motion this Court granted special

leave. The other, that is to say the first

decision of Mr Justice Waddell, deciding that the

particulars were outside his own order, was said by

Mr Justice Priestley, who wrote the only judgment - him - to be a matter which we submit in short -

His Honour was saying, in effect, to be a matter which was arguable and which should therefore be

reconsidered by the trial judge since they were
already sending back to the trial judge the

question of the extension of time having overruled

his decision that he had no power to grant an

extension of time. It is at page 329 of the report

which I handed up, Your Honours.

His Honour referred, at line Fon that page,

to a decision of Mr Justice Stephen when a judge of
the Victorian Supreme Court about the distinction

between something which was merely a piece of
paper, as it were, on the one hand; on the other
hand something which can properly be described as a
pleading. His Honour said, just below line Fon

page 329:

"No doubt there may be extreme cases

where what is delivered cannot properly be

described as a pleading at all. For instance,

containing no more than the title of the	a plaintiff could not deliver a document
action and the description statement of claim
and contend that there was no default on his
part."

DEANE J:  Mr Rayment, can I divert you for a moment. When

you look at the order of Justice Waddell set out on

pages 2 to 3 of the appeal book, what if related to

was particulars of matters to be relied on in

support of an application to reopen the plaintiff's
case, to recall witnesses, evidence to be led from
those witnesses and proposed amendments to the
statement of claim? Now, what was the position in

the suit if your client decided it did not want to

reopen its case or amend its pleadings? Had the

S-Cross 10 19/4/91

stage been reached where, if that happened, you

lost?

MR RAYMENT:	No.
DEANE J:	The stage had been reached where, if that

happened, His Honour had to give a judgment?

MR RAYMENT:  Yes, His Honour had to decide whether he would

allow some change to be made to the course of the

case. Indeed, at the end of the 97th day - - -

DEANE J:	But what if you did not want a change?
MR RAYMENT:	Presumably - the order does not actually seem

to mention it but one thing one could have done, we submit, without disobedience to the order is put in one line saying we no longer seek leave to reopen.

DEANE J:  Was the self-executing order by consent?

MR RAYMENT:  No. To say it is insufficient, in our

respectful submission, has the real consequence

that one's application for leave to reopen might be

bound to fail or to succeed only to a very limited
extent. In other words, the person who suffers the
detriment from the particulars being insufficient

is the plaintiff with respect to the fate of his

application for leave to reopen, we submit.

BRENNAN J:  was any appeal ever brought from the original

order of 23 March?

MR RAYMENT:  I think not, Your Honour. Everything else has

been the subject of.an appeal in this case but I the history of this matter, a belated application
think not that. Both Mr Lanigan's recollection and

by my client to seek an extension of time in which

to seek leave to appeal from the self-executing order which was refused by the Court of Appeal;

Mr Lanigan thinks, first time round, Mr Hely is not

quite sure when but at some stage.

TOOHEY J: But the self-executing order arose out of a

motion to dismiss for want of prosecution, did it

not?

MR RAYMENT:  Yes.

TOOHEY J: It did not arise out of proceedings directly

related to the application for leave to reopen.

MR RAYMENT: That is true. If one looks at the chronology

one can see the way in which it arose, Your Honour.

In February 1986 the application which Your Honour

refers to - it is just described as 2/1986 on

S-Cross 11 19/4/91

page 1 - to dismiss the suit for want of

prosecution led to the making of the order of

21 March 1986. But I think, as Mr Justice Waddell

points out, the contents of the two orders for

particulars -

TOOHEY J:  What is the document you are taking us to,

Mr Rayment?

MR RAYMENT:  I just referred to the chronology that I handed

up now, if Your Honour please. Your Honours, it is

true that the order that Your Honour sees at

pages 2 and 3 of the application book was, in

effect, the order made as a result of FAI's

application to dismiss the proceedings for want of
prosecution; however, the terms of the first two
orders for the provision of particulars were

repeated from directions originally given by

10 September 1985.

TOOHEY J:  I think all I was really putting to you,

Mr Rayment, was that the self-executing order has

to be seen in the wider context of the litigation,
that the delay that had ensued prior to the making

of the order, which obviously generated the
application for an order dismissing for want of

prosecution.

MR RAYMENT:  Yes. One can see from the terms, though, of

these orders for particulars, that they are ordered

in the context of an application for leave to

reopen and that is referred to in the 1985 events

higher on the page in the chronology. In other

words, a previous order for the provision of

particulars was repeated and a time limit set to it

and that is - - -

BRENNAN J:  What appears from that chronology is that there

were difficulties about the formulation of the

plaintiff's case from at least the second half of

1985 which were brought to a head in the hearing in

February 1986 and Mr Justice Waddell, as it were,

made an order granting a further indulgence until

May 1986.

MR RAYMENT:  Yes, that is right. But still the person who

suffered it, the particulars were no good once

provided, was the person seeking leave to reopen.

TOOHEY J: Well, yes, but it may be that that takes a

somewhat narrow view. Say the order having been

made on 21 March, before 30 May the present

applicant had realized that there would be

difficulties in providing the particulars and

decided overall it was better to abandon the

application to reopen, and had gone back to the

court - and this, I suppose, must be speculation to

S-Cross 12 19/4/91

some extent - but the application to dismiss for

want of prosecution would still have been live,

presumably, and might well have been granted in any

event.

MR RAYMENT:  So far as the existing action was concerned,

His Honour made some orders for security which were

some $300,000 or close to it. It was ordered to be

paid in by 30 May and that was done. So far as the
future of the action was concerned, in order to

bring it to a head he directed that detailed

particulars be provided.

DEANE J: But one way His Honour's order could have been

complied with would be if your client had said, "We

no longer desire to reopen or recall" - - -

MR RAYMENT: That is what we submit.

DEANE J: - - - "therefore the request for detailed

particulars has become without content."

MR RAYMENT:  Yes, that is what we submit, Your Honour.

DEANE J: But you did not do that.

MR RAYMENT:	No.
DEANE J:	You came back and said, "We want to recall but

we'll just give you this mess in answer to an order

for detailed particulars."

MR RAYMENT:  We put forward - I agree, Your Honour, that - I

would not seek to suggest that the particulars were

otherwise than atrocious.

DEANE J: Well, that is - they are a mess. The query is

whether the mess in circumstances where you had to

give detailed particulars is a failure to comply

with the order at all.

MR RAYMENT: It really amounts, in our respectful

submission, when it is framed in those terms, to

this: say what you wish to say of the detail of

the application you wish to make and the grounds

for it for leave to reopen, say in whatever detail

you wish so that it can be taken into account by

the parties in dealing with your application for

leave to reopen.

DEANE J: But, now, is that not your problem and is that not

what Mr Justice Handley obviously thought, namely

that whatever approach one takes, this mess cannot

be described as detailed particulars of facts,

matters and circumstances to be relied on in that

it makes it absolutely clear that there are facts,

matters and circumstances to be relied upon of

S-Cross 13 19/4/91

which no detailed particulars at all are given in

that document? I am not asking you to concede it,

I am just trying to direct your attention to it.

MR RAYMENT:  Thank you, Your Honour, and I want to deal with

it. Your Honours, if one looks through the

document, its error is to adopt by reference, first

of all, earlier documents without making, perhaps,

very clear which parts of those documents are

referred to. If one looks at page 3, it says:

are as set out in the details particulars and
submissions made to the court on the

application for further discovery made on

21 March, 1985 and in particular matter set

out in the judgment of Waddell Jin that

matter -

That was his decision that the further discovery

should now be made by FAI because the existence of

these documents in their possession had now become

apparent. His Honour said, putting it shortly,

that there were some documents which clearly were

discoverable which had not been discovered and

there were some which might lead to a train of

inquiry which should have been discovered and

others which should not have been discovered.

and of exhibit "H" in an application made to

set aside the proceedings in the trial on

12th April, 1985 and in the particulars given

in relation to the application made on

12th April, 1985 for an order to set aside the

proceedings and the matters more particularly

referred to in.the judgment of Waddell J of

14 August, 1985.

It is very generalized.

TOOHEY J:  But it gets worse, does it not?

DEANE J:  Look at the paragraph in the middle of page 4 in

answer to a direction to serve detailed particulars of facts, matters and circumstances to be relied on

by the plaintiffs. It is the closest to a

statement of "I won't tell you" that one could

really find.

TOOHEY J:  I do not want to pile pelion on ossa, Mr Rayment,

bnt if you go to the top of page 5 where the party
is asked to identify the witnesses and what they

are going to say, the answer is:

the subject matter of the evidence sought to

be elicited from such witness would be to put

to each witness purely matters derived from

the documents referred to above - - -

S-Cross 14 19/4/91

MR RAYMENT:  If the issue was strike out there would be no

doubt, we would respectful submit, that these would

be ordered to be supplemented. But, Your Honours,

if the issue is, "Was a document filed?", which was

exactly like the description that

Mr Justice Stephen gave of a statement of claim,

that is a document headed statement of claim and

otherwise blank - - -

DEANE J:  No, but that is not it, is it, because the issue

is did your client serve detailed particulars of

facts, matters and circumstances of those things.

MR RAYMENT:	Yes.
DEANE J:	Now, what if, looking at this document, one takes the view that it is clear beyond argument that you
identified those facts, matters and things but you did not serve detailed particulars of what you were going to rely on in relation to them?
MR RAYMENT:	We submit it is sufficient to know that we

purported to, not that we did so, in fact, and,

Your Honours, we make that submission particularly

because the person who suffered as a result of any

deficiency in what was put in this document was the

party who delivered it. He was, in other words,

asked to set out particulars of arguments.

DEANE J:  The other view about that is that this order was,

"This has reached the stage where unless you stop

mucking around with this court your suit will be

dismissed. "

MR RAYMENT: Well, one would have thought that once a

document was filed which did comply with the order,

the application for leave to reopen would come

back - - -

DEANE J:  We are going round

MR RAYMENT:  We are going around in a circle if I put that,

Your Honour. Your Honours, in any event,

Mr Justice Stephen's judgment was referred to by

Mr Justice Priestley and it was His Honour's reason

for hesitating in finding that this admittedly very
bad document was not, on any view of it, the

provision of detailed particulars.

One matter that needs to be borne in mind in

addition to what has already been put, and it is

obvious, is that this is a self-executing order so

that if something purporting to be the provision of

detailed particulars is provided which is held on

analysis of it not in truth to a.mount to that kind

of thing the consequence is horrendous and we

S-Cross 15 19/4/91

submit that that is a further reason for regarding

an order for the provision of detailed particulars

as requiring the provision of a document purporting

to provide detailed particulars.

Your Honours, can I go to the next matter

because they both fall together; that is, it is

not just the particulars which is at the heart of this matter. If there were an appeal as of right from the matter dealing with the particulars or by

leave from the matter dealing with the extension of

time then, we submit, the Court of Appeal was not

justified in concluding that the appeal was bound

to fail for these reasons: firstly, the President

observed in his judgment that - - -

BRENNAN J: 

Mr Rayment, just to endeavour to identify the issues in this case, the first proposition that you

advanced, as I understand it, is that you have a

right of appeal which has not been accorded to you.

MR RAYMENT: 

Yes, Your Honour.

BRENNAN J: 

If that right of appeal were accorded to you you

would seek to agitate the question of whether or
not the document that was delivered did or did not

satisfy the condition which had been imposed under

the self-executing order.

MR RAYMENT: First, yes, Your Honour; and, secondly, we

would seek to agitate the issues about extension of

time. That is to say in the first place His Honour

Mr Justice Waddell - as one can see from that

chronology - directed late in 1989 the provision of

further particulars for the purposes of the

application for extension of time and no one has

suggest that there is anything wrong with those
particulars; that is point 1. Point 2: the

President refers in his judgment to the

possibility, which we submit is a real one, that on

hearing an interlocutory appeal from the failure to

extend the time, their Honours could give leave for	the proving of facts as to the reason for the delay
if that be thought to be fatal, that is if there
was delay between the hearing of the matter in the
High Court and the first listing of the matter
before His Honour Mr Justice Waddell.

Such a course - and His Honour the President

says that it is at least possible that that would

occur. Section 75A of the Supreme Court Act would

empower the Court of Appeal to receive that

evidence and, Your Honours, we have included in the

bundle by way of illustration of it the Charrington

case in the English Court of Appeal; one of the

misnomer or mistake in the name of the party cases

where the circumstances in which the solicitor had

S-Cross 16 19/4/91

made a mistake in issuing his writ were not proved

before the primary judge but on the hearing of the

appeal for the English Court of Appeal they allowed

them to be proved before Their Honours by leave.

In our respectful submission, there would be

no legal bar to the reception in the Court of

Appeal of evidence of delay and perhaps an

explanation for the failure to tender it below on

the hearing of the extension of time matter.

BRENNAN J:	Was an application made to tender material before the Court of Appeal on this application or
was it regarded as premature?
MR RAYMENT:	It was not made before the Court of Appeal but

my instructions certainly are that if the matter

ever gets to the Court of Appeal on appeal, that
application would be made to Their Honours to prove

the reasons for the delay.

BRENNAN J:  If this Court were not with you in relation to

the finality point, your argument is then founded

substantially on an argument that we should

reconsider the sufficiency of the document which

has been tendered as satisfying the condition

imposed.

MR RAYMENT:  Not quite, Your Honour. It is partly dependent

upon that. Your Honours, the proposition we would

put forward in the alternative for the first

proposition about finality is this, and it would

therefore assume that both orders are interlocutory

- we would put forward this proposition and it is

based very substantially on what is said in this

Court in the Bucknell case which is in the bundle.

Bucknell was, of course, decided at a time

when some appeals lay to this Court by leave and

some by special leave and the provisions of

section 35 of the Judiciary Act are set out at

page 223 of the judgment. It is quite a short	judgment, if I could direct Your Honours' attention
to it.

Your Honours might recall that there was a 300

pound lower limit. The provision went on to say

that with respect to such matters:

an appeal may not be brought from an

interlocutory judgment except by leave of the

Supreme Court or the High Court.

Then section 3S(l)(b) dealt with the circumstances
in which special leave to appeal was required and

Their Honours took pains to indicate the way in

which the discretion to grant leave would be

S-Cross 17 19/4/91

exercised in many cases without seeking to bind

themselves.

What they made very clear - this case is one

of the cases which is authority for the proposition

that if the court before whom an application for

leave is brought thinks that the appeal would be

bound to fail then that would be a reason to refuse

leave. They go on to say this - for example, at

the foot of page 225: where the interlocutory

order in question:

has the practical effect of finally
determining the rights of the parties, though
it is interlocutory in form, a prima facie

case exists for granting leave to appeal. For

example, a judgment for either party on a

demurrer might, in effect, be decisive of the

whole litigation. Although such a judgment

would often be interlocutory, it might be

final in determining the issue between the

parties, and, in in such a case, leave would

be granted almost as of course. Again, an

order giving leave to sign final judgment is

in its form interlocutory. Yet in its effect

it is final. But, in such a case, the court

is under a duty to take care that a defendant

who is unlikely to succeed in his appeal does
not by appealing to this court and obtaining a

stay defeat the very purpose of proceedings -

by obtaining a stay. That was at a time when one

had an automatic stay in this Court.

But it can be seen, in our respectful

submission, that Their Honours thought that there

was a sharp difference to be drawn from the special
leave cases on the one hand and the leave cases on

the other and a very important part of that

consideration was that an appeal lay here as of

right if the judgment was final. In other words,

the distinction between that which is interlocutory	and that which is final was not treated as decisive
of whether, as a matter of discretion, leave should
be granted.

So if, we submit, consistently with that, if a

supreme court or the Federal Court - indeed, it

affects probably every court in Australia - has

before it an interlocutory application which, like

this case, has the ultimate effect of finally

disposing of the litigation, even though it might

be interlocutory in form, the Court should not

refuse leave in any but the clearest cases and

while there are matters which might persuade an

appellate court to allow an appeal, especially

matters of the kind referred to by the President of

S-Cross 18 19/4/91

additional evidence, such an order, in our

respectful submission, should not lie, as a matter

of discretion, either in the supreme court or in

any other court which has such rules. The fact

that no appeal lies to this Court except by special

leave only serves to reinforce such a proposition

because a person who fails to obtain leave must

then show more than would be necessary to be shown

on leave in order to obtain special leave.

So the second way we put this case, His Honour

the President was right to refer to Bucknell, that the judges of the majority, Mr Justice Mahoney and

Mr Justice Handley, who make no reference to it -

indeed, it should be said, in our respectful

submission, that Mr Justice Handley proceeded on

the opposite assumption, that is, if Your Honours

look at his judgment you will see that he referred

to the Will of Gilbert and to Adam P. Brown, that

line of country where distinction is drawn between

a discretionary judgment not going to a matter of

practice and procedure and one which does go to a

matter of practice and procedure. There, the Court

is very slow to interfere, as Sir Frederick Jordan

said and as this Court said in Adam P. Brown Male

Fashions. That is at page 66 of the application

book, just below line 10.

Although the proposition is obviously right, that philosophy is consistently with Bucknell's

case to be attenuated if one is looking at the

question of leave, bearing in mind that the court

is a court to which prima facie all judgments may

go, the only requirement in the case of

interlocutory judgments being leave. So,

Your Honours, that is the second way we would seek

to put the case.

DEANE J:  Mr Rayment, in the last page of this chronology,

item 5 in the matters referred to by

Mr Justice Waddell, how does that statement fit in

here?

MR RAYMENT:  It just was adverted to by His Honour as one of

the reasons.

DEANE J:  No, but he says that:

the order of 21/3/86, no doubt because it

gave -

your client -

what they asked for.

MR RAYMENT:  Yes.

S-Cross 19 19/4/91

DEANE J:  I had thought when I asked you was it a consent

order you had said that it was not what they

wanted.

MR RAYMENT:  No, and I still say it, Your Honour. He

apparently directed an inquiry as to how long the

time should be and the answer was 90 days.

DEANE J:	I see.
MR RAYMENT:	He asked for three months but it is not -

DEANE J: It seems to indicate that His Honour did not think there was opposition to the self-executing order at the time he made it.

MR RAYMENT:	I think, Your Honour, the order actually resulted from the application to dismiss the suit
for want of prosecution made by FAI in which my
client was certainly not the moving party, it was
the respondent, and it contested those orders.
DEANE J:	I mean, plain experience is that in recent years

self-executing orders have ordinarily, one would
hope, only been made where the parties are in

agreement that that is the way out and, of course, there are some courts that will not make them even if the parties are in agreement.

MR RAYMENT:  Your Honour, I do not know that - if one looks

at what was actually happening when this self-

executing order was made, one can see it from the

foot of page 1 of the chronology. They had been

trying to get money by way of calls, independently
of this case, and before they obtained an order for

the provision of security for costs FAI filed a

winding-up petition in respect of the plaintiff

company, then applied to appoint a provisional

liquidator which was obtained for some 20 days.

The shares of Southern Cross were suspended on

22 January.	Then my learned friend's client
applied for the dismissal of the proceedings for

want of prosecution. Then these orders were made

for security and for the provision of particulars
to be provided. It is about three months from

February 1986 and they only succeeded in having the suspension lifted and an auction of some forfeited

shares held in May and Your Honours see that a few

days before the time expired there was a discussion

with junior counsel at that time about the

preparation of this draft document. Then, all

within a day or so, FAI's petition was finally

dismissed, the security was provided and this

document was filed.

Your Honours, I should ask Mr Lanigan, I

think, who appeared, whether there was opposition

S-Cross 20 19/4/91

expressed to the making of a - Your Honours, what I

am told is that after His Honour delivered judgment

in the application to dismiss for want of

prosecution he directed that short minutes be

brought in. FAI brought in these short minutes and

my junior's recollection is that he was not then

present when the order was made. But it did not, to the best of the knowledge of those surrounding me, wh6 do not include the solicitor then before

Mr Justice Waddell, result from any consent or

otherwise.	May it please Your Honour those are our
submissions.

BRENNAN J: We need not trouble you, Mr Hely. After lengthy

and unduly protracted litigation, it is not in the

interests of justice to grant special leave to

appeal to consider whether the Court of Appeal has

rightly decided that a declaration that a self-

executing order dismissing an action had taken

effect is not itself a final judgment in the action

and that an order refusing to extend time for

satisfying a condition imposed under the self-
executing order is interlocutory.

Although as Mr Justice Kirby, the President,

points out, the consequence of the making of the
self-executing order and of the view formed by

Mr Justice Waddell that the condition was not

satisfied is that the Court of Appeal has not

determined whether the particulars served by

Southern Cross in purported compliance with the

order satisfied the condition, Mr Justice Mahoney

and Mr Justice Handley perceived no error in the

view of Mr Justice Waddell which would justify the

grant of special leave to appeal. We are in

agreement with the views expressed by Their Honours

in that respect. In our view the application for

special leave should be refused.

MR HELY:  I ask for an order for costs, Your Honour?

BRENNAN J:	Mr Rayment.
MR RAYMENT:	Nothing to say, if Your Honour pleases.

BRENNAN J: It will be refused with costs.

AT 12.11 PM THE MATTER WAS ADJOURNED SINE DIE

S-Cross 21 19/4/91