Stack & Anor v Elster Metering Pty Ltd & Ors

[2005] HCATrans 324

[2005] HCATrans 324

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  Nos B21 and B33 of 2005

B e t w e e n -

GEORGE STACK

First Applicant

G S TECHNOLOGY PTY LIMITED

Second Applicant

and

ELSTER METERING PTY LTD (FORMERLY DAVIES SHEPHARD PTY LTD)

First Respondent

WOODPICKERS AUSTRALIA PTY LTD (FORMERLY DAVIES SHEPHARD (QUEENSLAND) PTY LTD)

Second Respondent

G S A INDUSTRIES (AUST) PTY LTD

Third Respondent

BRISBANE CITY COUNCIL

Fourth Respondent

Summonses

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 23 MAY 2005, AT 11.04 AM

Copyright in the High Court of Australia

__________________

MR A. VASTA, QC:   I appear with my learned friend, MR P. DUNNING, for the applicants, your Honour.  (instructed by Fox Lawyers)

MR S.G. O’BRYAN SC:   May it please your Honour, I appear on behalf of the first to third respondents.  (instructed by Blake Dawson Waldron)

MR A.W. DUFFY:   May it please your Honour, I appear on behalf of the fourth respondent, the Brisbane City Council.  (instructed by Brisbane City Legal Practice)

HIS HONOUR:   Yes.  Mr Vasta, your application for special leave is filed, is that right?

MR VASTA:   Yes, your Honour.  Yes.

HIS HONOUR:   What is the state of it?  Is it ready to proceed?  Has there been compliance with the Rules?

MR VASTA:   We are proceeding in accordance with the directions which the Registrar has set out and the applicants’ outline of submissions has to be filed on or before 31 May.  Yes, 28 June, then for the respondents’ directions and it will then depend upon the Court’s list as to when the matter might be heard as a special leave application, your Honour.

HIS HONOUR:   Mr Vasta, do I understand the position to be that on your material there would be a balance owing of the order of 13,000 for costs?  Am I wrong about that?  I had a little trouble following your arithmetic.

MR VASTA:   Your Honour, I was going to seek leave to file a further affidavit because certain events have occurred since then and, if I misstate the facts my learned friend, Mr O’Bryan, will correct me, but last Wednesday two cheques were tendered, one for the amount of the costs in respect of Q243 of 1999 which was the Full Court order for costs, and the special leave application of June 2002 and those cheques are now said - they are going to be accepted.  But when the matter came on before Mr Justice Dowsett on a directions hearing in order to amalgamate both of those matters, that was brought on at a time when the cheques had been delivered but instructions had not yet been forthcoming as to whether they were going to be accepted.

It was sought at that stage then to perhaps look at another order for costs which were made by the judge at first instance, Mr Justice Cooper, in a matter which proceeded for 37 days and we were a bit apprehensive in respect of that in what we have done and because it was an oversight we sought to amend our original summons to include that order Mr Justice Dowsett made on 30 March 2004.  But since then the affidavit material would indicate that there has been some correspondence in relation to the matter and we are happy at this stage to have the present summons before your Honour adjourned to a date to be fixed to be brought on upon giving to any other parties who are respondents to this matter three clear days notice.

HIS HONOUR:   Does that mean that you do not want to pursue your application for a stay, Mr Vasta?  Am I ‑ ‑ ‑

MR VASTA:   In view of the fact that they have now indicated, and for the first time it was done in a letter which was sent yesterday, your Honour, that they are now accepting and they are not proceeding with the winding up and the bankruptcy respectively of GST and Stack, that we see that the only apprehension we may have is that in respect of those other orders for costs, that if any steps are taken, that we might wish to come back to this Court and seek a stay, and that is the only reason why we would ask that the matter be adjourned to a date to be fixed to be brought on in the manner in which I have already indicated.

HIS HONOUR:   Mr Vasta, how many other matters are there in respect of which the costs have not been pursued yet?  I know they are going to be, but ‑ ‑ ‑

MR VASTA:   The largest of those is Mr Justice Cooper’s.

HIS HONOUR:   Thirty seven days, which would obviously be very large.

MR VASTA:   About 325 on the affidavits.  They say $325,000 and there are some incidental costs in relation to the statutory demand applications which we have brought to set aside those demands before Mr Justice Spender, one of which he found because we had not complied within time given after service, to have been served before we actually had knowledge of it.  Those costs orders are still outstanding, but we would anticipate that – and just speaking to my learned friend before your Honour came in, it would indicate that perhaps those matters are not ready to be put in the form of a statutory demand until after the renewed special leave application is heard, or even ‑ ‑ ‑

HIS HONOUR:   In any event, Mr Vasta, I suppose if anything were done in relation to those costs, you can renew your application on this summons if I agree to adjourn at ‑ ‑ ‑

MR VASTA:   Yes, your Honour.

HIS HONOUR:   I decide to adjourn.  Mr Vasta, I do not know whether the Brisbane special leave list has been finalised yet.  I know that ordinary compliance with the Rules would put you beyond the date of that.  It is fairly obvious that the matter ought to be disposed of as soon as possible.

MR VASTA:   Yes.

HIS HONOUR:   It has been around for a long time.

MR VASTA:   It has, your Honour.  We had put in originally one application for special leave, but because the Full Court judgment consisted of two parts, one which was the purely statutory interpretation one of section 15 of the Patents Act, the other one was a related matter when the interests of Stack and GST brought an application before his Honour Mr Justice Cooper for declarations and in those proceedings Mr Justice Cooper made an order for the revocation of the patent which Justice Kiefel had ordered to be put in the name of GST.

Now, because the Registrar considered that those two matters were joined, we had to then amend the original application for special leave and file a new application for special leave, taking into account that related matter.  That delayed things but we are going to comply now with the directions which, as I say, are that we file the outline of submissions on or before the 31^st.

HIS HONOUR:   Or the 28^th, was it?  I thought it may have been the 28^th.

MR VASTA:   The final reply we have is by 28 July, then.

HIS HONOUR:   All right.  I just might hear from Mr O’Bryan, Mr Vasta.  Mr O’Bryan?

MR O’BRYAN:   Your Honour, it is submitted that the application should be dismissed today.  Can I just briefly go through the background which is in the affidavit that our learned friends have filed.  Your Honour may be aware that the Full Court costs order goes back a number of years.  That costs order was taxed and unpaid and it then founded a statutory demand against the company, GST, the second applicant.  The High Court costs order also goes back now a few years.  That was taxed, that founded a statutory demand also.

HIS HONOUR:   When was it taxed?

MR O’BRYAN:   Back in about 2003 I think, your Honour, at least two years ago.  Both of those founded statutory demands.  The High Court costs order tax certificate founds a bankruptcy petition against Mr Stack, the first applicant.  The taxed Full Court costs order founds the winding‑up petition against his company, the second applicant.  They did not pay both of those orders.  They were not huge sums.  One was about $60,000 ‑ ‑ ‑

HIS HONOUR:   Have they been paid now?

MR O’BRYAN:   Yes, so that the history, your Honour, is that rather than pay them, they then applied to the Federal Court to have ‑ ‑ ‑

HIS HONOUR:   That is history.  They have been paid now.  What do you say is outstanding now, the 37 days trial costs.

MR O’BRYAN:   Yes.  Your Honour, there is an order that they pay to my clients half the costs of that trial, but that is where it stands. 

HIS HONOUR:   All right.  Now, let me get this clear.  Why only half the costs?

MR O’BRYAN:   That was his Honour’s order based on the issues before his Honour.

HIS HONOUR:   Having regard to the issues, his Honour ordered.

MR O’BRYAN:   Yes.

HIS HONOUR:   Have those costs been taxed?

MR O’BRYAN:   No, your Honour. 

HIS HONOUR:   But they have been estimated.

MR O’BRYAN:   They have been estimated.  They were estimated for the purposes of the winding up before his Honour Justice Dowsett.

HIS HONOUR:   All right, what is the estimate?

MR O’BRYAN:   It is $325,000.

HIS HONOUR:   What Mr Vasta told me?

MR O’BRYAN:   Yes.

HIS HONOUR:   Are there any other costs outstanding?

MR O’BRYAN:   There is the costs order, your Honour, that Justice Spender made in relation to their failed application to set aside the statutory demands.

HIS HONOUR:   Is there an estimate of that?

MR O’BRYAN:   No, your Honour, no ‑ ‑ ‑

HIS HONOUR:   In any event, I can take it that something of the order of perhaps $350,000 is likely to be owing to your client. 

MR O’BRYAN:   Yes.

HIS HONOUR:   Now, is there any further money likely to be outstanding? 

MR O’BRYAN:   If there are other miscellaneous costs orders they would be of a small order, your Honour.  Along the way there might have been the odd, small order but they would be of a low amount.

HIS HONOUR:   And that amount of $350,000, that cannot form the basis of a statutory demand until you have had a taxation and you have it ‑ ‑ ‑

MR O’BRYAN:   Yes.

HIS HONOUR:   Is that correct?

MR O’BRYAN:   Yes, and we have not even served a taxable bill yet.

HIS HONOUR:   All right.  Now, Mr O’Bryan, subject to hearing from Mr Duffy, of course, let me tell you what my inclination is in this matter.  It is only an inclination, but I would be minded to adjourn the application for a stay but to make orders effectively rescinding the orders in relation to the practice directions so far in order to have this matter ready for the Brisbane sittings, that is the application for special leave which is likely to be on Wednesday or Thursday of the sittings in Brisbane, which is about a month away.

Now, it seems to me that because this matter has been around for so long that there is no reason why Mr Vasta’s outline of argument could not be ready by the end of this week.  What is the ordinary time for your outline in reply?  The respondent’s outline, is it not 28 days normally?

MR O’BRYAN:   I think it is, but my client would like to co-operate to ‑ ‑ ‑

HIS HONOUR:   It would be in your interests very much.

MR O’BRYAN:   Yes, my client would like to do that, your Honour.

HIS HONOUR:   Well, if you know what is coming and you would have a pretty good idea what is coming, seven days ought not be unreasonable and then seven days for Mr Vasta and then I would simply adjourn this and either party could then come back to me, but I would be adjourning it in the hope and, indeed, the expectation that it could be listed as one of the special leave applications in Brisbane…..The sittings start on Monday the 20^th and it is not a heavy sittings.  I think there are only three appeals and I think the Chief Justice will expect the special leave applicants to be ready by the Wednesday and the applications will come on on the Wednesday and Thursday.  Would you be able to comply with that sort of ‑ ‑ ‑

MR O’BRYAN:   Certainly, your Honour.

HIS HONOUR:   Mr O’Bryan, if you do not mind I will just speak to Mr Duffy and then I will come back to Mr Vasta.

MR DUFFY:   Your Honour, so far as the special leave application is concerned, we can meet that sort of timetable.

HIS HONOUR:   Thank you.  Mr Vasta, you have heard what I have in mind.

MR VASTA:   Yes, your Honour.

HIS HONOUR:   There should not be any problem about that, should there?

MR VASTA:   No, your Honour.

HIS HONOUR:   Gentlemen, this is the order I propose.  Would you please tell me if there are any problems for anybody about any aspect of it:  that Mr Vasta’s application for a stay be adjourned with liberty for any party on 24 hours notice to make application to bring it back on either to seek to have it dismissed or to have it pursued if Mr Vasta should become so advised; order that the directions previously given with respect to the application for special leave – there is only one application, Mr Vasta, is there not?

MR VASTA:   There are two.

HIS HONOUR:   That the directions presently given with respect to the applications for special leave be rescinded and in lieu it be ordered that the applicants file their outline by Friday of this week, which is the 27^th; that the respondents file their outlines of submission by 3 June; the outline in reply on behalf of the applicants be filed by 10 June; and that the parties – I will order that the parties co‑operate in order to ensure that all that need be done for the hearing to proceed be done by 15 June and that the parties be – and I will intimate that the parties should be ready to proceed during the Brisbane sittings of the Court commencing on 20 June.  I cannot give you an absolute assurance that you will be on the list but it is my expectation that the matter will be able to be listed at that time.  I am minded to reserve the costs.  Is there any reason why, Mr O’Bryan, I should not reserve the costs?

MR O’BRYAN:   No, I would not be heard to oppose reserving the costs.

HIS HONOUR:   Mr Duffy, is there any reason ‑ ‑ ‑

MR DUFFY:   No, your Honour.  We will in due course argue for them, but no.

HIS HONOUR:   You understand what I am contemplating is that you be ready in sufficient time.

MR O’BRYAN:   Yes.  Could I mention one thing?

HIS HONOUR:   Yes, of course.

MR O’BRYAN:   Could there be a mechanism, your Honour, where this application – if the special leave application were to fail, whether it be in June or later in the year, where this application could be dealt with and put to bed while all the parties are in Court.

HIS HONOUR:   Well, I am adjourning the application.  I think the best thing for you to do, on the assumption that there will be…..given to this application ‑ ‑ ‑

MR O’BRYAN:   We would give notice.

HIS HONOUR:   Give you 24 hours notice.  You will know by about the 13^th or 14^th whether the matter is going to be listed.  Why do you not just give notice then to have it ‑ ‑ ‑

MR O’BRYAN:   Listed for the same day.

HIS HONOUR:   Yes.

MR O’BRYAN:   Yes, if your Honour pleases.

HIS HONOUR:   I think that is sensible, Mr Vasta.

MR VASTA:   Yes, thank you, your Honour.

HIS HONOUR:   Now, is there anything else I need ‑ ‑ ‑

MR VASTA:   Nothing further, your Honour.  Just a question in Mr Duffy’s matter.  I just thought these summonses were only directed to the first three respondents.  We were not seeking a stay against the Brisbane City Council, although because this is technically an interlocutory matter, of course, the parties in the special leave application had all to be mentioned, but the summons was only directed to the interest represented by my learned friend ‑ ‑ ‑

HIS HONOUR:   You are only seeking a stay against Mr O’Bryan ‑ ‑ ‑

MR VASTA:   Yes.

HIS HONOUR:   There was some question about the necessity for you to be here, was there not, Mr Duffy?

MR DUFFY:   Your Honour, we were served and, secondly, the orders that are sought are in perfectly general terms - that is, the orders below, at least three of which we are concerned with, be stayed, not only stayed as against the first three applicants but stayed generally.  We took it that ‑ ‑ ‑

HIS HONOUR:   You have orders in your favours for costs, too.

MR DUFFY:   Yes, your Honour.

HIS HONOUR:   That seems to be right, Mr Vasta, you would want them stayed too, would you not ‑ ‑ ‑

MR VASTA:   Very well.  Thank you, your Honour.

MR O’BRYAN:   One last thing, your Honour.  I am not sure if we need leave, but we had prepared an affidavit while we were deciding whether to take the cheques.  Can we have leave to file that, so when the matter comes on ‑ ‑ ‑

HIS HONOUR:   Certainly, so that the record is complete.

MR O’BRYAN:   If your Honour pleases.

HIS HONOUR:   And if there is anything further you need to file in relation to any of that, although I cannot think there would be, Mr Vasta, you should also file it.

MR VASTA:   Yes.

HIS HONOUR:   You want leave to file an affidavit though, do you not, Mr Vasta?

MR VASTA:   I wanted leave to file the amended summons, which has been given to my learned friends, and to file an affidavit of Stephen Fox.

MR O’BRYAN:   No opposition, your Honour.

HIS HONOUR:   Thank you.  Mr Duffy, you would not object?

MR DUFFY:   No opposition.

HIS HONOUR:   You have leave, Mr Vasta.

MR VASTA:   Thank you, your Honour.  Then I seek leave to file the amended summons.

HIS HONOUR:   Yes, you have leave.

MR VASTA:   Thank you, your Honour.  They are the only further documents that I wanted to seek leave to file, your Honour.

HIS HONOUR:   Nothing further then?

MR VASTA:   Nothing further, your Honour.

HIS HONOUR:   Thank you.

MR DUFFY:   Thank you, your Honour.

AT 11.27 AM THE MATTER WAS ADJOURNED