Stephen Parbery in his Capacity as Special Purpose Liquidator of One.Tel Limited (In Liquidation) & Anor v Publishing and Broadcasting Limited [2012] HCATrans 217

[2012] HCATrans 217

[2012] HCATrans 217

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S115 of 2012

B e t w e e n -

STEPHEN PARBERY IN HIS CAPACITY AS SPECIAL PURPOSE LIQUIDATOR OF ONE.TEL LIMITED (IN LIQUIDATION) (ACN 068 193 153)

First Applicant

ONE.TEL LIMITED (IN LIQUIDATION) (ACN 068 193 153)

Second Applicant

and

PUBLISHING AND BROADCASTING LIMITED (ACN 009 071 167)

First Respondent

CONSOLIDATED PRESS HOLDINGS LIMITED (ACN 008 394 509)

Second Respondent

ROBBDOC PTY LIMITED (ACN 086 229 138)

Third Respondent

TORANAGA PTY LIMITED (ACN 056 229 728)

Fourth Respondent

CAVALANE HOLDINGS PTY LIMITED (ACN 080 695 754)

Fifth Respondent

NEWS LIMITED (ACN 007 871 178)

Sixth Respondent

LETENO PTY LIMITED (ACN 068 820 388)

Seventh Respondent

JAMES DOUGLAS PACKER

Eighth Respondent

PETER WILSON YATES

Ninth Respondent

LACHLAN KEITH MURDOCH

Tenth Respondent

PETER JOHN MACOURT

Eleventh Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 SEPTEMBER 2012, AT 11.28 AM

Copyright in the High Court of Australia

____________________

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR A.A. D’ARCY, for the applicants.  (instructed by Lipman Karas)

MR J.D. ELLIOTT, SC:   If the Court pleases, I appear with MR S.M. NIXON for the first to fifth and eighth respondents.  (instructed by Minter Ellison Lawyers)

MR N.C. HUTLEY, SC:   If your Honour pleases, I appear with my learned friend, MR J.R.J. LOCKHART, SC, and MR S.A. LAWRANCE for the sixth, seventh, tenth and eleventh respondents.  (instructed by Allens)

MR N.J. YOUNG, QC;   May it please the Court, I appear with MR J.R. WILLIAMS for the ninth respondent.  (instructed by Atanaskovic Hartnell)

GUMMOW J:   Yes, Mr Walker.

MR WALKER:   Your Honours, there is just one point.  If I turn to page 199, please, in the application book, paragraph 520, the second line, there is to be found one of the places where her Honour at first instance made a determination “a fair trial still seems to me to be possible”.  That needs to be seen in the context of the comment or the description by her Honour ‑ ‑ ‑

GUMMOW J:   Is this a visitation case, if anything?

MR WALKER:   It has to be a bit more than that.  It is a bit more than that, but we certainly say in House v The King terms that with the finding of fair trial possible, there is an unaccountable discrepancy between what should have been the outcome of the discretion – and it is a discretion – and what has been the outcome.

HAYNE J:   Why?  Why is fair trial possible the sole and exhaustive test in a circumstance like this?  How many extensions have there been beyond the last day before issue, before tolling?

MR WALKER:   Four or five; a lot, your Honour.

HAYNE J:   Yes.

MR WALKER:   Six.  It is not a number we want to dwell on, your Honour, but it is there.

HAYNE J:   No, I thought not.

MR WALKER:   The history is not one we want to dwell on.  Now, I want to turn that to our account.  This provides a particularly powerful vehicle, in that regard, to test whether or not fair trial is an important outcome or conclusion or summary proposition to which all the factors which the cases uncontroversially require to be considered in such a case is contributing.  So that the judicial discretion to have the effect of preventing a case from being tried on its merits is, we submitted below – and would seek to submit in this Court – is one that has ultimately a single point to which all the strands contribute, namely, the sufficient possibility, probability, of a fair trial.

HAYNE J:   So your side seeks a dispensation from the application of the rules?

MR WALKER:   Yes.

HAYNE J:   And seeks a dispensation on the basis that you should have it simply because a fair trial is still possible?

MR WALKER:   No.  There will be occasions where combinations of deliberateness may well require something which, though not punitive – it should never be punitive – will nonetheless disentitle an applicant seeking the discretionary relief from relief, but that is not this case.  In our submission, what this case raises is the conceptual difference between what her Honour called, in a somewhat difficult phrase, “presumptive prejudice”.  The difficult phrase is to be found at page 140, paragraph 358.

It is difficult because her Honour starts with “presumptive” but then moves to “inferred or otherwise” and so clearly there was a self‑direction here to the effect that “the risk of prejudice”, which of course has to concern itself centrally with fair trial values – “the risk of prejudice” need not be demonstrated.  Why this case provides a powerful vehicle to test the question is, as I pointed out, in paragraph 520 her Honour actually held fair trial was still possible.

It is for those reasons, in our submission, that the long and gruesome history by which the discharge applications and the application for a final extension came to be determined actually provide, given the thoroughness with which her Honour canvassed all the considerations which produced the continuing possibility of fair trial, actually produces in this case an occasion for the court to consider the way in which discretions of this kind should, on the one hand, eschew what might be called disapprobation or punishment as a proper reason for exercising the discretion and, on the other hand, the extent to which, so long as a fair trial can be had, there ought to be something very special indeed, entirely absent from this case, to prevent such a case from going to trial.  To put it another way, that the oft repeated description of such discretions as discretions which require to be exercised judicially are there to be exercised for the end to which the judicial power is directed, namely, the hearing and deciding of cases.

There are objections raised against us that we should confront straightaway.  It is said that we have failed to put this in the appropriate House v The King construct.  That is not so.  We accept entirely that these are discretionary judgments the outcome of which fall to be susceptible to appellate review and reversal on well‑established principles.

BELL J:   But you no longer take issue with the well‑established principles that were applied but with the weighting that her Honour gave to one of the considerations in the exercise of the discretion?

MR WALKER:   We would not put it that way, but what your Honour is referring to is of course what our grievance is.  No, we do not put it simply as a matter of weighting of one among a number of factors.  We say the fair trial factor is in fact a culminating or summary point; it collects all the other matters.

BELL J:   Was that the way it was put before her Honour and is that consistent with Buzzle?

MR WALKER:   It is certainly consistent with Buzzle, although it is not to be found in Buzzle – that is, there is nothing Buzzle that suggests that their trial is irrelevant.  That would be an absurdity to expect in any such decision, but it is certainly true that Buzzle and Kirk – and Buzzle is the source of the matter – sets out the factors which we accepted below required to be taken into account.

That was the second point of objection against us that we need to confront.  It is true that in paragraph 24 of our submissions we write, in relation to Buzzle and Kirk, that there is an omission in them concerning fair trial, but that was not intended to suggest that the factors in Buzzle and Kirk were not the factors that were required to be taken into account, rather that the danger has been encountered of mistaking the wood for the trees and that all of those factors are factors that add up to the question whether, this being a judicial discretion, its outcome needed to be assessed by reference to the fair trial, which is the exercise of judicial power.

GUMMOW J:   The root of the problem may be that this very first extension set the pattern for these ex parte extensions over the opposition of Mr Yates, I think, at 359.

MR WALKER:   Yes; quite so.  First of all, that is not, with respect, an issue ‑ ‑ ‑

GUMMOW J:   Maybe not, but it makes this an unattractive vehicle.

MR WALKER:   Your Honour, we would rather put it ‑ ‑ ‑

GUMMOW J:   It comes up here with what to my mind is a questionable source in paragraph 12 of Justice Barrett’s reasons set out at page 359, which at the moment I just do not understand.

MR WALKER:   Yes.

GUMMOW J:   There is a lot to be said for open justice being openly arrived at, particularly when the statute of limitations is tolling.  Anyhow.

MR WALKER:   Yes.  I think it is the last sentence of paragraph 12 at the top of page 360 which shows what was actuating his Honour.  Your Honours, we would submit that that does not render this an inappropriate case; it rather makes it what might be called a hard case – that is, a more appropriate vehicle.  There was the problem that there was a long succession of ex parte applications in themselves regular.  That is the basis upon which we can present it.

It is also to be borne in mind that the timing in question, the timing of the ultimate service following which, and following some appearances, in fact, these applications were made would have been – this is now just an irony but it is a circumstance relevant to considering it as a vehicle – within the period proposed by the respondents on an occasion when we did not accept that proposal.

We have set out those matters at 436 in paragraph 4(c) of our written submissions.  I need, of course, to point out that on page 65, commencing in paragraph 146, there is a discussion of some of those matters by her Honour.  I am not intending to suggest, contrary to what her Honour held, that is anything in the nature of an acquiescence or the like, but it is of significance in considering the matters which have been raised with me as casting adverse light on this as a vehicle that on the other side of the ledger there is the fact that the service which was ultimately accomplished was within a period that was acceptable according to the earlier attitude of the respondents.

Now, it has been held, and we do not challenge, that they are entitled to change that attitude, not least because we did not accept the proposal.  We do not seek to raise in this Court any further the matters which were raised below as to the propriety with which the applications were made against us but, in our submission, taking that into account, this is a case which precisely – because of the circumstances which led to the repeated applications led to the delay being engendered by a consideration of litigation funding circumstances and related matters of costs – provides a proper test of whether, once there has been a finding that fair trial is possible, what is really left outside of an inadmissible punitive approach of the discretion.

In our submission, the IMB approach, to which reference is made in the written submission, held in New South Wales to be in accordance with the New South Wales approach, Buzzle – and it is, so far as Buzzle goes – does have this this virtue compared to Buzzle that it does explicitly focus upon the capacity, ultimately, of a party having a fair opportunity to present its case, to which may be added, of course, or to test the other side’s case – in other words, a fair trial.

That ultimate functional culmination or summary of all of the factors that IMB and Buzzle otherwise consistently show are those that ought to be regarded in this judicial exercise of discretion is one which, in our submission, has miscarried in this case.  How has it miscarried?  Because there has been a decision made on the basis of what is called “presumptive, inferred or otherwise” risk of prejudice, notwithstanding fair trial is still possible.  That, in our submission, is a puzzling situation in relation to any discretion, the effect of which, like an application to extend a limitation period or an application to dismiss by reason of abuse of process, the effect of which is to stop the court doing what the court is there ordinarily to do.

It is for those reasons, in our submission, that far from rendering this an inappropriate case for special leave, these remarkable circumstances are such as to highlight and cast appropriate light upon what we submit is the fundamental importance of fair trial as the touchstone against which one should be approaching this kind of application as well as others.  May it please the Court.

GUMMOW J:   Thank you, Mr Walker.  We do not need to call on counsel for the respondents.

This is not an appropriate case for consideration of any general point of principle asserted by the applicant.  Nor do the interests of justice call for a grant of special leave here.  Special leave is refused with costs.

We will adjourn to reconstitute.

AT 11.45 AM THE MATTER WAS CONCLUDED