Sumampow & Ors v Mercator Property Consultants & Anor

[2002] HCATrans 186

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P68 of 2001

B e t w e e n -

ROBBY SUMAMPOW, JOKKY HIDAYAT, KWIK SOEN HOEK and HERMAN TJAHJAHDI GANI

Appellants

and

MERCATOR PROPERTY CONSULTANTS PTY LTD

First Respondent

CHRISTMAS ISLAND RESORT PTY LTD (RECEIVER AND MANAGER APPOINTED) (IN LIQUIDATION)

Second Respondent

Summons for directions and application for security for costs

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON MONDAY, 20 MAY 2002, AT 11.01 AM

Copyright in the High Court of Australia

____________________

MR M.J. BUSS, QC:   May it please your Honour, with my learned friend, MR N.A. ODORISIO, I appear for the second respondent.  (instructed by Clayton Utz)

MR R.E. BIRMINGHAM, QC:   If the Court pleases, I appear with MR R.K.F. DAVIS for the applicants.  (instructed by Su & Co)

MR M.J. McPHEE:   If it please the Court, I appear for the first respondent.  (instructed by Michell Sillar McPhee)

HIS HONOUR:   What is your attitude, Mr McPhee, to the application?

MR McPHEE:   We support the application, your Honour.

HIS HONOUR:   Yes, thank you very much.  Well, you are the moving party, Mr Buss, so perhaps you might identify the affidavits that you are relying on.

MR BUSS:   Thank you, your Honour.  Your Honour, we rely upon an affidavit sworn by Francis Philip Woodmore on 15 May 2002, that being an affidavit sworn on behalf of the first respondent.  We also rely upon a supplementary ‑ ‑ ‑

HIS HONOUR:   Just a moment.  You say “on behalf of the first respondent”.

MR BUSS:   That is right.

HIS HONOUR:   He is an officer of the first respondent, but is this an affidavit in your case?  You are for the second respondent, are you not?

MR BUSS:   That is true, your Honour, but there are some matters deposed to in that affidavit and another affidavit also sworn by Mr Woodmore in relation to prejudice that we rely on in support of our case.

HIS HONOUR:   Yes, very well.  You rely on that affidavit of 15 May of Mr Woodmore and I think there is a second affidavit of Mr Woodmore.

MR BUSS:   There is, your Honour.  There is a supplementary affidavit sworn on 17 May and we also rely upon that.

HIS HONOUR:   Yes, I have that.

MR BUSS:   In addition, your Honour, we rely upon two affidavits sworn by Jeffrey Laurence Herbert, the first sworn on 27 March 2002.

HIS HONOUR:   Now, just a moment.  He is the liquidator, is he?

MR BUSS:   Yes, he is, your Honour.

HIS HONOUR:   Yes, I have seen that affidavit.  I just cannot find it at the moment. 

MR BUSS:   Yes, I do not intend to refer to it specifically in the course of my submissions, if that is of assistance to your Honour, but we do rely on it.

HIS HONOUR:   This is the affidavit which points to the inconvenience to the liquidation of the company and to not only the present parties before the Court but also employees and others, is that correct?

MR BUSS:   No, your Honour, that is the further affidavit of Mr Herbert.  The affidavit that I referred to is one sworn on 27 March 2002.

HIS HONOUR:   Just a moment.  Yes, 27 March 2002, I have that affidavit.

MR BUSS:   Yes, we rely on that and the other affidavit which I think your Honour probably had to hand a moment ago is a two‑page affidavit sworn by Mr Herbert on 17 May.

HIS HONOUR:   Yes, I have seen that affidavit.  Yes, I have seen that, thank you.

MR BUSS:   And finally, your Honour, the only other affidavit we rely on is one of Nino Anthony Odorisio sworn on 28 March 2002.

HIS HONOUR:   Yes, I have not read that affidavit.  Just a moment.  I have the affidavit now before me.

MR BUSS:   Thank you, your Honour.

HIS HONOUR:   Yes, I have read the affidavit of Mr Nino Odorisio sworn 28 March 2002.

MR BUSS:   Thank you, your Honour.

HIS HONOUR:   Is that the entirety of your case in terms of factual evidence?

MR BUSS:   Yes, it is, your Honour.

HIS HONOUR:   Yes, thank you.

HIS HONOUR:   Perhaps I should just ask Mr Birmingham – Mr Birmingham, is there anything in any of those affidavits – first of all, have you seen the affidavits?

MR BIRMINGHAM:   I have seen the affidavits, your Honour.  There is no objection taken to any part of those affidavits.

HIS HONOUR:   And do you wish to cross‑examine any of the deponents of the affidavits?

MR BIRMINGHAM:   There is no desire to cross‑examine any of the deponents.

HIS HONOUR:   Thank you.  Now, perhaps whilst you are on your feet you might identify the evidence that you will be relying on.  This may be a New South Wales procedure but it is the one that is familiar to me, so that is the one we are going to follow.

MR BIRMINGHAM:   Thank you, your Honour.  Your Honour, the applicant will rely on the affidavit of Tien Shang Su sworn 15 May 2002.

HIS HONOUR:   Yes, I have that affidavit.

MR BIRMINGHAM:   There is a further affidavit of Mr Tien Shang Su sworn 16 May 2002, although it bears on its cover sheet the date 2001.  That is sworn 16 May 2002.

HIS HONOUR:   Just a moment.  I have two copies here of the affidavit of 15 May.  It is very easy to get out of order with papers unless you take control of them.  I now have the affidavit of 16 May.  Just a moment.  I will have to read that.  Yes, I have read the affidavit of Mr Su sworn 16 May 2002.  There is a third affidavit by Mr Su, I think, of 19 May, is that correct?

MR BIRMINGHAM:   Thank you, your Honour, that exhibits a statement signed by the fourth‑named applicant, Mr Gani, and I would further seek to rely on that.

HIS HONOUR:   Yes, I have read that.  In that affidavit, or the annexure to the affidavit, there is an indication that the applicants, the respondents to this summons, consent to the making of orders for security for costs, is that correct?

MR BIRMINGHAM:   That is correct, your Honour.  The only matter for your Honour today is the question of whether the application should proceed or be struck out for want of prosecution.

HIS HONOUR:   Yes.

MR BIRMINGHAM:   Naturally it will consent to an order for costs if the matter is to proceed.

HIS HONOUR:   Yes.  Does that consent go to the amount claimed, which I think was $53,000?

MR BIRMINGHAM:   It consents to an order in the terms of the application, if it please your Honour, namely the 53,000.

HIS HONOUR:   Yes, very well.

MR BIRMINGHAM:   The only other material to which the applicant would refer, your Honour, would be to the affidavit of Mr Gani that is exhibited to Mr Herbert’s affidavit sworn 27 March ‑ ‑ ‑

HIS HONOUR:   Yes, this is the exhibit to the affidavit of 19 May.

MR BIRMINGHAM:   No, it is the affidavit of the liquidator, Mr Herbert, and it is exhibit JLH9 to that affidavit, at page 72 of that affidavit.

HIS HONOUR:   Just a moment.  There were two affidavits by Mr Herbert.  This is the large affidavit, is it?

MR BIRMINGHAM:   This is the large one, your Honour, and he exhibits as exhibit JLH9 an affidavit of Mr Gani sworn in other proceedings on 11 May 2000.  That exhibit appears at page 59.

HIS HONOUR:   Yes, I have that.

MR BIRMINGHAM:   And I will be referring to page 72 of that document, paragraph 48 and 49 of that affidavit.

HIS HONOUR:   Yes, very well.  I have read those paragraphs, thank you.

MR BIRMINGHAM:   That is the evidence upon which the applicant would rely.

HIS HONOUR:   Yes, thank you.  Mr Buss, do you wish to cross‑examine any of the deponents, Mr Su, in relation to his affidavits?

MR BUSS:   Your Honour, if there is sufficient time today for a short cross‑examination, we would seek to cross‑examine Mr Su, but if cross‑examination would necessitate the adjournment of the proceedings, then we would simply seek to argue the matter based on the affidavit material without cross‑examination.

HIS HONOUR:   Mr Buss, you are an old‑timer.  You know the rules.  I do not give any indication on that.  I will sit here as long as is required and if you want to cross‑examine Mr Su, you are entitled to, as he has sworn affidavits in these proceedings.  If you want to cross‑examine him, he will be called forward.  If you do not, then he will not.

MR BUSS:   Very well.  We seek to cross‑examine him.

HIS HONOUR:   Is Mr Su in Court?

MR BUSS:   Yes, he is, your Honour.

HIS HONOUR:   Very well.  Mr Su should come forward.  Is it possible that the video monitor should be concentrated on Mr Su or does he have to stand at the Bar table somewhere?  I just do not know what the facilities are.

MR BUSS:   Well, it would be better, if possible, your Honour, if Mr Su could be in the witness box and sworn there, but whether it is possible for the technology to ‑ ‑ ‑

HIS HONOUR:   Is it feasible for – is there any operator there who can train the camera on Mr Su?

MR BUSS:   Yes, we are informed there is, your Honour.

HIS HONOUR:   Very well.  Mr Su, you go into the witness box, please.  Is Mr Su in the witness box?  I cannot see this.  Yes.  Is there an officer in the Court who can swear Mr Su?

MR BUSS:   Yes, there is, your Honour.

TIEN SHANG SU, sworn:

HIS HONOUR:   Mr Birmingham, do you want to commence the examination?

MR BIRMINGHAM:   Only to formally put the affidavits to him, but I would not do otherwise.

HIS HONOUR:   Mr Su, what is your address, please?‑‑‑My residential address, your Honour?

No, your business address will do?‑‑‑My business address is 7th Floor, 524 Hay Street, Perth, your Honour.

And you are a solicitor of the Supreme Court of Western Australia and the solicitor for the applicants in the proceedings in the High Court?‑‑‑Yes, your Honour.

Yes.  Is there anything you want to ask Mr Su, Mr Birmingham?

MR BIRMINGHAM:   No, your Honour.

HIS HONOUR:   Yes, thank you.  Yes, Mr Buss.

CROSS-EXAMINED BY MR BUSS:

MR BUSS:   Thank you, your Honour.

Mr Su, did you appear as counsel before his Honour Justice Kirby on 3 September 2001 in relation to this matter?‑‑‑Yes, sir.

And after the hearing before his Honour on that day did you bring the transcript of the proceedings on that day to the attention of your clients?‑‑‑No, sir, not on that day.

Did you at any time after that day bring the transcript of the proceedings to the attention of your clients?‑‑‑Yes, sir.

When did you do that?‑‑‑Some time last year, I believe in October.

In October.

HIS HONOUR:   Just pause for a moment.  I would rather the camera be concentrated on Mr Su.

MR BUSS:   And how did you bring the transcript to the attention of your clients?‑‑‑I had the transcript faxed to him.

In Indonesia?‑‑‑In Indonesia.

Mr Su, as you understood it, the order for removal which Justice Kirby made required in essence that you prepare a draft case stated in relation to the question of law that his Honour reserved for determination by the Full Court, is that correct?‑‑‑Yes, sir.

And you knew that shortly after appearing before his Honour Justice Kirby on the last occasion, did you not?‑‑‑Yes, sir.

Indeed, Mr Robson of counsel told you that that needed to be done, did he not?‑‑‑Yes, sir.

Now, has Mr Robson been instructed at any time since September 2001 to draft or settle the case stated?‑‑‑Yes, sir.

And when was he instructed to draft or settle the case stated?‑‑‑Well, he was instructed by me to proceed with preparing a case.

And when was he so instructed by you?‑‑‑Almost the same day, on 10 September – around about 10 September, after the hearing before his Honour the Justice.

And to your knowledge has any draft of the case stated been prepared since that time?‑‑‑No, sir.

And why is that?‑‑‑We were negotiating on a fee.  There is a fee matter that needs to be resolved and not yet been resolved until recently.

Well, the position in relation to fees between you and your clients is that prior to the hearing before Justice Kirby in September 2001 you agreed a fixed fee with your clients, did you not?‑‑‑Yes, sir.

And the fixed fee which you agreed was in relation to the work which needed to be done to progress this matter before the High Court through to conclusion, correct?‑‑‑Essentially, sir; not in those terms.

Well, what were the terms as you understood them to be?‑‑‑Well, when the case started and the technicality of the case, something which I have to depend on counsel, but when we agreed on the fees, these are the fees which I agreed with the applicants on the lump sum fees, including my counsel’s fee, to take the matter to the High Court, but the proceedings before the High Court turned out to be more complicated than me and my counsel thought.  So, yes, if the brief is to take the matter to the High Court, yes, that was in a sense the fixed fees to take the matter to the High Court.

Now, you mentioned yourself and your counsel, Mr Robson, correct?‑‑‑Yes.

How long has Mr Robson been instructed by you in relation to the issues which were removed by his Honour Justice Kirby in September 2001?‑‑‑Mr Robson has indicated to me – he has been briefed on 10 September, after the hearing.

Well, he was briefed before then, was he not?‑‑‑He was.

And he was briefed to advise you and, through you, your clients in relation to the constitutional issues relating to the corporations legislation, was he not?‑‑‑Yes, sir.

And was it Mr Robson who recommended to you the point on which your clients should seek the removal of a question of law into the High Court?‑‑‑Yes, sir.

And Mr Robson gave advice in relation to that for a significant period of time prior to September 2001, did he not?  I will ask another question.  When approximately did Mr Robson first give you advice that there might be a constitutional issue in relation to the corporations legislation which your clients might be able to agitate before the High Court?‑‑‑I cannot remember without my file notes.

Well, are we talking in the order of a day, a month or a year prior to September 2001?‑‑‑I cannot remember.

HIS HONOUR:   Do you have your file notes in Court?  Do you have your file notes in Court, Mr Su?‑‑‑I have some of my file notes in Court, your Honour.

Would it be helpful for you to have those notes with you?‑‑‑Yes, your Honour.

Well, they can either be handed to you or you can leave the witness box and get the notes and come back to the witness box.

MR BUSS:   Mr Su now has the file before him, your Honour.

Mr Su, would you please examine your file and then answer the question I last asked you, if you can?‑‑‑I am looking through my file notes.

Well, any luck, Mr Su?‑‑‑No.

Well, perhaps I can help you.  I have here a document which was filed, evidently, in the Perth office of the Registry of the High Court.  The document is dated 3 October 2000.  It appears to have been filed by your firm and it is described as “Applicants’ Summary of Argument”.  Could I hand that document to you, please.  Are you familiar with that document?‑‑‑Yes, sir.  That is a document in file 53 of 2000.

And it bears a date, does it not, 3 October 2000?‑‑‑Yes.

And if you look at that summary of argument, the summary makes reference to various constitutional issues said to arise in relation to the corporations legislation, does it not?‑‑‑Yes, sir.

And the document is signed or purports to be signed by counsel on the last page of the document.  Can you see that?‑‑‑Yes.  I signed it.

I see.  That is your signature, is it?‑‑‑Yes, sir.

Did you prepare the document?‑‑‑No, sir.

Who prepared the document?‑‑‑This document was prepared with the assistance of my counsel.

Who was ‑ ‑ ‑?‑‑‑Mr Ken Robson.

You say it was prepared with the assistance of Mr Robson.  As you understood it, did Mr Robson prepare the document or did you prepare a draft which was settled by Mr Robson?‑‑‑Mr Robson essentially prepared the document.

Did you have any intellectual input into the document at all?‑‑‑Very limited, sir.

Sorry?‑‑‑Very limited.

Well, what was your limited intellectual involvement in the preparation of that document?‑‑‑I would suggest Mr Robson has essentially prepared this document.

Mr Robson prepared it, did he not?‑‑‑Yes.  Well, I assisted him as much as I can, but I depend on counsel in these matters.  It is too complex for me.

Do you agree with me then that Mr Robson was instructed by you in relation to this constitutional issue at the latest by 3 October 2000?‑‑‑It would appear so.

And, indeed, it is the position, is it not, that Mr Robson was instructed by you for some time prior to 3 October 2000?  Do you agree with that?‑‑‑Yes.

Your Honour, I think that document has been filed with the Court, but for good order and housekeeping it may ‑ ‑ ‑

HIS HONOUR:   Well, I think you have identified it sufficiently – you have identified it sufficiently for my purposes.

MR BUSS:   Yes, thank you, your Honour.

HIS HONOUR:   And the witness has agreed that Mr Robson was the principal, if not the only, author of it on 3 October 2000 and that he had been briefed for some time prior to that.

MR BUSS:   Yes, thank you, your Honour.

Now, Mr Su, when did you reach this agreement that you have mentioned with your clients in relation to fees?‑‑‑Well before – well before this document.

I see.  And after September 2001 you sought to renegotiate the fees with your client, correct?‑‑‑That’s right.

And your clients did not wish to renegotiate the agreement, did they?‑‑‑Well, my client did not say that.  My client says that they will consider.

I see?‑‑‑They did not say “no” but they said they would reconsider, but they did not agree to – other than to say they will reconsider.

I see.  And since you first raised the issue of renegotiating the fees with your clients, has the issue matured to the stage where the clients have either agreed or not agreed to renegotiate the agreement, or vary the agreement?‑‑‑Yes.  The client has now agreed to vary the agreement.

And when did the client agree to vary the agreement?‑‑‑On 14 May. 

On 14 May?‑‑‑Yes.

Now, you have mentioned in your affidavit of 15 May 2002 in paragraph 4 that you have been unable to obtain instructions in relation to matters raised by counsel which, according to you, are extremely complicated?‑‑‑Yes.

That is in paragraph 4.  You can look at your affidavit to refresh your memory, if you need to?‑‑‑I do not have my – can I have access to my affidavit, please?  Excuse me.

Now, what were – you see that in paragraph 4, Mr Su?‑‑‑I am looking – searching for my affidavit.  Yes, I see my affidavit on 15 May.

Yes.  Now, what were the “extremely complicated” matters that were raised by you with counsel?‑‑‑The complicated matter arises in September when we appeared before the High Court and there was a time that counsel has alerted me that due to those recent decisions of…..Re Macks v Saint – Ex parte Saint, a couple of the points which we seek to rely on in our High Court appeal, because in light of the recent High Court cases may have changed, there may be very narrow, limited grounds of appeal in the High Court and in that turn of event ‑ all these thing is way past me, but that is what my counsel indicated to me, that we need to look at it more seriously, to study the case and that the retainer of fees which we negotiated with – and that was the fees that we engaged – from the time we engaged on a couple of years ago needs to be revisited, that I should talk to my client about it.

So the matter on which you were seeking instructions which you refer to in paragraph 4 of your affidavit was in relation to the fee agreement with your clients, is that correct?‑‑‑That’s right.  Excuse me, is that paragraph 4 of my affidavit?

Paragraph 4?‑‑‑Yes.

Now, the preparation of the case stated is not a matter which you regard as extremely complicated, do you, Mr Su?‑‑‑It is.

What is the basis for your view that the preparation of the case stated is extremely complicated?‑‑‑It is complicated to me because in relation of the High Court matters I rely extensively on my counsel.

Well, the preparation of the case stated was a matter that you had briefed to Mr Robson by September 2001, did you not?‑‑‑Yes, yes.

It was not something into which you were to have any intellectual input, was it?‑‑‑No.

You were simply going to receive the case stated, as you understood it, from Mr Robson and upon it being agreed with the respondents attend to filing it in the Registry?‑‑‑That’s right.

Well, what is the basis for your view then that the preparation of the case stated was extremely complicated?‑‑‑Well, it’s complicated to me in a sense that without counsel’s help I cannot proceed any further with this – I cannot assist the Court.

I see.  So your view that the preparation of the case stated is extremely complicated is based on the fact that you do not know what to do and you are relying upon Mr Robson to prepare it?‑‑‑Yes.

Did Mr Robson ever tell you that the preparation of the case stated was extremely complicated?‑‑‑No, he did not use the word “extremely complicated”.

Do you have any idea what is required in relation to the preparation of a case stated for the purposes of this case?‑‑‑No.

And Mr Robson did not tell you that the preparation of the case stated was extremely complicated, did he?‑‑‑He did not use those words.

Well, he did not in substance tell you at any time that the preparation of the case stated was extremely complicated, did he?‑‑‑He did not use the word “extremely complicated”.

Well, what words in substance did he use, do you say?‑‑‑I’m trying to look through my file notes.

You cannot recall without looking at your file notes?‑‑‑No.

All right.  Well, look at your file notes then, please?‑‑‑Yes, Mr Robson has indicated to me that since those recent cases before the High Court and especially after the hearing before Justice Kirby that they are very difficult questions that require considerable research, especially on issues of section 7 and 10 of the constitutional issues.  He says ‑ ‑ ‑

Yes.  Well, that is relating to the legal issues, Mr Su?‑‑‑Yes.

Did Mr Robson ever give you any advice in relation to the complexity or otherwise of preparing the case stated?‑‑‑No.

Do you know what a case stated is?‑‑‑I thought those were the legal issues.

You thought it was a statement of the legal issues?‑‑‑Yes.

You did not think it was a statement of the material facts which are necessary to enable the Court to determine the issue of law which Justice Kirby reserved for their consideration in September 2001?‑‑‑No, no.

You did not think that?‑‑‑No.

And you have never received a draft of the case stated from Mr Robson?‑‑‑No.

Do you know why that is?‑‑‑Well, Mr Robson is waiting for me to resolve my question of fees with my – with my clients.

Well, in paragraph 7 of your affidavit of 15 May 2002 you say that counsel has advised that he requires the additional assistance of a junior.  Do you see that?‑‑‑Yes.

Now, did Mr Robson ever advise you that he needed additional assistance of a junior in order to prepare the case stated?‑‑‑Yes.

Are you sure about that?‑‑‑Yes.

It was not that Mr Robson said he required the additional assistance of a junior in order to prepare the legal argument?‑‑‑Come again.  I do not understand that question, please.

I see.  Well, do you know why the case stated, or a draft of it, has not been prepared since September 2001?‑‑‑Because Mr Robson has not given me a draft case.  I can’t file a draft case.  I ‑ ‑ ‑

Have you ever asked him why he has not given you a draft case?‑‑‑Yes.  He has told me in September that he needs assistance, to provide him with assistance.

Have you ever asked Mr Robson since September 2001 why he has not provided you with a draft case?‑‑‑At least one occasion, once or twice, informally.

Yes.  And what advice did he give you when you inquired informally?‑‑‑Mr Robson has queried from me whether I have resolved my issue of fees with my client.

And how is that relevant to the preparation of the draft case stated?‑‑‑Because without the – without the assistance provided to Mr Robson’s request, I can’t get the draft case.

Well, perhaps I can sort of cut quickly to this point, Mr Su.  Is it the position that you have not sought to progress the preparation of the case stated in September 2001 because your clients have not agreed to vary the fee agreement that you agreed with them prior to September 2001?‑‑‑Yes.

Is that the only reason?‑‑‑Well, that is not the only reason.

Are there any other reasons and, if so, what are they?‑‑‑Some of the reasons which I have is that after September, when counsel has indicated to me that they are difficult issues and that they require assistance, I tried to get the additional resources from my client.  My client has indicated that they will reconsider the request.  And between that period of time, due to my personal circumstances, I just do not want to do – I just freeze.  I just – my mind just went blank.

Well, when you were referring to getting additional resources from your client, you mean money, do you?‑‑‑Yes.

Money in the form of money in your trust account or an agreement to vary the fee agreement?‑‑‑Money in relation to vary the fee agreement.

Now, is it not the position, Mr Su, that your personal circumstances have really not had anything to do with the delay in preparing the case stated?‑‑‑It does.  It very much does, sir.  I dispute that.

Well, is it not the case that by September 2001 you had instructed Mr Robson to prepare the draft case stated?‑‑‑Yes.  Mr Robson has indicated to me that he is willing to do it but he require additional resources and I do not know how to get it and when my client says that they will reconsider, I just did not know what to do.  In hindsight I suppose I should seek the assistance of somebody more senior to me, but I just freeze.  I just didn’t know what to do.

Well, you mentioned that Mr Robson told you that he needed additional resources.  What do you mean by that?‑‑‑Well, exactly what I said in the affidavit.

You mean a junior/junior counsel, or are you talking about money?‑‑‑He required a junior to assist him.  He has indicated to me that maybe I am not in a position to brief him properly.

Are you saying that Mr Robson told you that he, Mr Robson, needed a junior counsel to assist him to draft the case stated?‑‑‑Mr Robson has indicated to me to get a junior to assist him.  To get him to get a draft case stated, I do not know.

And have you ever inquired of Mr Robson since September 2001 when the draft case stated will materialise?‑‑‑I have made inquiries at least once with Mr Robson but Mr Robson has indicated to me to resolve the question of fees with my client and I was not able to do so and I found it very difficult to do so.

Has Mr Robson told you in substance since September 2001 that in order to get a draft of the case stated you need to vary the fee agreement with your clients?‑‑‑The understanding I have in my mind is that I need to vary the fees arrangement with my client.

I will just put the question again, if you would listen to it carefully.  Since September 2001 has Mr Robson ever told you that you will need to vary the fee agreement with your clients before he will provide you with a draft of the case stated?‑‑‑Mr Robson has indicated to me that I should renegotiate the question of fees with my client.

Has he ever mentioned that in the context of when a draft of the case stated will become available?‑‑‑He has indicated to me that for him to proceed further after September, I have to renegotiate the question of fees with my client.

Did he tell you in substance that he would not do any more work on the case after September 2001 until you had resolved the question of a fee variation with your client?‑‑‑He has indicated to me that he is unable to assist me unless I renegotiate the question of fees with my client.

And by assist you, you understood that to include preparing the draft case stated?‑‑‑Yes.

Did you communicate to your clients what Mr Robson told you about renegotiating fees in order for him to be able to assist further?‑‑‑Yes, I did.

And did you tell your clients about that statement of Mr Robson shortly after Mr Robson made it to you?‑‑‑What statement did Mr Robson make?

That he would not be able to assist you further with the case until you had renegotiated the question of fees?‑‑‑I did not indicate to my clients those statements in those words.  I have indicated to my client that I need counsel’s assistance in getting the case further; that without counsel’s assistance it is very difficult for me to proceed.

And you told the clients that in order to obtain or secure counsel’s assistance, the clients needed to agree to pay more money than they had originally agreed?‑‑‑Yes, we need to renegotiate the fees.

And you told your clients that sometime in September 2001?‑‑‑Yes, I indicated after the hearing that we have to renegotiate the fees to secure continued counsel’s assistance.

And you spoke to your clients about that issue at intervals of approximately one month after September 2001?‑‑‑Yes, approximately.  Yes.

So you spoke to your clients after September, up to May 2002 at intervals of approximately one month?‑‑‑Yes.

And on each occasion was the topic of conversation the variation of the fee agreement?‑‑‑Yes.  My client asked me about a delay.  I say that, “Look, I have some difficulties – I have some personal difficulties.  I need counsel’s help in this matter”.

How much did you ask the clients to pay under the renegotiated or proposed renegotiated fee agreement?‑‑‑Well, the question of precise figure was not mentioned but the question asked is are they willing to prepare to renegotiate the fees.

So you have never raised with your clients any figure, any amount of money in relation to the renegotiated fee agreement?‑‑‑I have asked my client to consider increasing the fees of what we had first.  I was not able to get it past first base.  They tell me to do my best.

Yes?‑‑‑On the existing fee arrangement.

So the sole point I am getting to is you have never put a figure or an amount for the client?‑‑‑No.

And what was the amount that you agreed with the clients prior to September 2001?‑‑‑Around $40,000.

$40,000?‑‑‑Yes.

You say around $40,000.  Was it exactly $40,000 or was it in terms agreed at around $40,000 as an estimate?‑‑‑I cannot recall.

Is the agreement in writing?‑‑‑There was some writing to that effect.

To what effect?‑‑‑To the fixed fee.

And does the writing refer to a particular figure?‑‑‑Yes.

What figure does it refer to?‑‑‑I cannot recall.

You seriously tell me that you cannot recall what the figure was, Mr Su?‑‑‑Yes.  It is there on the file somewhere.  I cannot retrieve that document now.

Well, you mentioned the sum of $40,000.  Is that your recollection, your best recollection of the figure?‑‑‑Yes, it is my recollection of the figure.

So, your best recollection of the figure referred to in the written document evidencing this fee agreement is that it refers to approximately $40,000?‑‑‑Yes.  According to my recollection it is about $40,000.

Now, the work that you understood you would be required to do in preparing this case for the High Court involved, in essence, reporting to the client and filing documents, did it not?‑‑‑Yes.

You were not going to have any intellectual input into the case, were you?‑‑‑Very little.

So the $40,000 was on account of fees for counsel?‑‑‑And to assist counsel’s needs, yes.

Mr Robson is a junior counsel, is he not, as you understand it, at the independent Bar in Perth?‑‑‑Yes.

And he told you that he needed a counsel who was junior to him to assist him with the case?‑‑‑Yes, he says that he needs a junior assisting him.

And the position has changed recently, has it not, in relation to counsel?‑‑‑Well, with the striking‑out application before the Court, I have indicated to my client that perhaps we would need a more senior person, a person who can quickly get to this matter and get a case going.

And have you retained Mr David Jackson, QC?‑‑‑Yes, I have.

And has he been retained with Mr Robson?‑‑‑Yes, he has been retained at my suggestion; at my suggestion that Mr Robson should be junior to him to assist him because to facilitate a case quickly.

And have you now abandoned the idea of a junior/junior to Mr Robson?‑‑‑Sir, that junior is not my idea.  That is a request by Mr Robson that he wants a junior assistant.  It is not my word.

The position now then is that if this case were to go forward, you have retained Mr Jackson and Mr Robson as your counsel, or your clients’ counsel?‑‑‑Yes, yes.

Now, you have renegotiated in the last few days the fee agreement with your client?‑‑‑Yes.

To enable you to brief and pay Mr Jackson and Mr Robson?‑‑‑Yes.

And that fee agreement ‑ ‑ ‑?‑‑‑A correction, sir, to pay Mr Jackson.

What about Mr Robson?‑‑‑I think Mr Robson has agreed to be junior to Mr Jackson.

Well, presumably for a fee?‑‑‑Well, Mr Robson has indicated that he is willing to assist Mr Jackson and not to worry about his fees.

Well, what do you understand that to mean?‑‑‑What I understand is that Mr Robson has indicated to me is that I should not worry about his fees in progressing this matter any longer in the light of this present application before the Court; that he’s willing to provide whatever is necessary to assist Mr Jackson to have this case heard as soon as possible and Mr Robson has indicated to me, and he is going, subject to the leave of this Court, that an appointment has been made with Mr Jackson to receive him at 3.30 tomorrow.  That is subject to the Court agreeing, of course, that this matter should proceed.

So you have an agreement with your client in relation to payment of Mr Jackson’s fees, correct?‑‑‑Yes.

And Mr Robson has told you not to worry about his fees?‑‑‑Well, Mr Robson says to me that it is important now in the light of this striking‑out action that this matter should be heard before the High Court.

I see.  Now, when you reported to your clients at intervals of approximately one month since September 2001, you told the clients that the case was at a standstill until the fee arrangement could be renegotiated, did you?‑‑‑Yes.  I told my client that this case cannot progress any more without my counsel’s help.  I told my client that unless counsel’s fees have been addressed, this matter is too complicated for me.  I told my client that every time they query about my delay and never at one time does this….of striking‑out action was in the picture.  The only time that I was seriously informed about this matter was some time in December when the second defendant’s solicitor indicated to me about a security of costs and a prospective of a striking‑out action.

And you told that to your clients, that is that the case was at a standstill until the question of fees was resolved on each occasion that you spoke to them since September 2001?‑‑‑I did not say, sir, the case was at a standstill.  No.

Well, you told them that the case could not be progressed, is that it?‑‑‑Well, I told them that the case cannot go any faster than what they wanted to be heard before the High Court.

And by saying it could not go any faster, you told them in substance, did you not, that no work could be done on the case until the question of fees had been renegotiated, did you not?‑‑‑Well, that was the understanding I hoped to convey to my client.

Well, that is the understanding you understood you conveyed to them?‑‑‑That was the understanding I thought I conveyed to my client.

And you thought you conveyed that to your clients because that is what you told them?‑‑‑Well, not in those words that you mention, but I told them that this case needs assistance from my counsel and I am not getting counsel’s assistance without the fees being resolved.

When you were communicating with your clients at these intervals of approximately one month, how were you communicating with them?‑‑‑By telephone calls, by telephone.

And you were speaking to them in what language?‑‑‑In English and sometime in Indonesian.

You can speak Indonesian?‑‑‑Yes, sir.

So, sometimes the conversations were in English and sometimes they were in Indonesian?‑‑‑Yes.

And sometimes a combination of both during the one telephone conference?‑‑‑Yes.

Yes, I have no further questions.  Thank you, your Honour.

HIS HONOUR:   Do you have any questions, Mr Birmingham?

MR BIRMINGHAM:   I do, thank you, your Honour.

HIS HONOUR:   Yes.  Perhaps I might just ask one question before you do.  I have made a note, Mr Su, that you mentioned “striking off”.  Did I mishear that?  Was that the expression you used?‑‑‑Yes.

What were you referring to there?‑‑‑What I was referring to was that I understood, perhaps foolishly or otherwise, that during September until recently in March, that the prospective of striking‑out action was not being entertained through my dealings with the parties; that the only issue was a security for costs.

Now, there are two expressions here.  One is “striking out” and one is “striking off”.  “Striking out” is essentially what is being sought in these proceedings in this Court before me today.  “Striking off” is normally left to a Full Court removing a solicitor from the rolls.  There is no question of that in your case, is there, or is there?‑‑‑I was not able to differentiate the difference between the two but now that you mention it, I was under the impression of striking out the case.  I was not able to understand that.

Yes.  Well, I think that is just a confusion in the use of a term.  You mentioned that you had briefed Mr Jackson.  Have you sent a brief to him in the proceedings in this Court?‑‑‑I have been in communication with him, yes, and he has indicated that he is willing to assist.

How was your communication?  Was it in writing or did you just telephone him?‑‑‑I telephoned him followed by a fax.  I have sent him a fax to confirm that.

And you offered him a brief.  As a solicitor you offered him a brief?‑‑‑Yes.

And he accepted the brief.  Is that correct?‑‑‑Yes.  Yes, he has accepted that brief.

Yes, very well.  Were there any questions arising out of that, Mr Buss.

MR BUSS:   No, your Honour.  No, thank you.

HIS HONOUR:   Yes.  Yes, Mr Birmingham.

MR BIRMINGHAM:   Thank you, your Honour.

RE‑EXAMINED BY MR BIRMINGHAM

Just on that last point first, Mr Su, who is to prepare the brief to be delivered to Mr Jackson?‑‑‑Mr Robson.

And has an appointment been made to see Mr Jackson?‑‑‑Yes.

When?‑‑‑It’s at 3.30 tomorrow.

Who will attend that appointment?‑‑‑Mr Robson has indicated to me that he will attend to Mr Jackson in his chamber in Sydney 3.30.

During the period subsequent to September 2001 ‑ ‑ ‑?‑‑‑Sorry, subject to the Court agreeing, of course.

Yes, proceedings were on September 10 and I think on September 11, you have told his Honour, you received a communication from Mr Robson about what was required and what he required by way of resources.  From then until May, did you communicate at all with your client in writing?‑‑‑No.  Sorry, I have communicated.  I’ve sent him some faxes.

Now, you have indicated to his Honour that you have spoken to your client and the point raised by Mr Robson was the question of, effectively, renegotiation of fees.  Had the fees been agreed prior to September?‑‑‑Yes.

And there was a request to renegotiate the fee?‑‑‑After September.

And am I correct in understanding that your client required, effectively, you to stick to the agreement?‑‑‑Yes.

Did you submit any fee notes to your client after September?‑‑‑No.

Did you receive any money from your client after September in payment pursuant to the agreed fee?‑‑‑Yes.  Yes, paid all outstanding fees.

All of your outstanding fees were paid?‑‑‑No, no.  Mr Counsel’s outstanding fees.

All counsel’s outstanding fees were paid?‑‑‑Yes.

HIS HONOUR:   Yes.  Is that all your questioning, Mr Birmingham?

MR BIRMINGHAM:   If I may just have one moment, please, your Honour.

HIS HONOUR:   I cannot see you, you see.  I cannot see whether you have sat down with a flourish, which is usually the way counsel indicate that they feel they are in front.

MR BIRMINGHAM:   If it please, your Honour, I will indicate the flourish.

Were you acting for the applicants on other matters as well?‑‑‑Yes.

Was Mr Robson briefed in relation to those matters?‑‑‑Yes, sir.

And were you in communication with Mr Robson between September and May in relation to those matters?‑‑‑Yes, sir.

Am I right in understanding then that it is only in relation to this matter that really there has been no attention directed to it?‑‑‑Yes, sir.

Did you at any time indicate to your client, the applicants, that the matter before the High Court was not proceeding at all?‑‑‑I have indicated that this matter cannot progress.

That was not the question though, Mr Su.  Did you indicate that nothing was happening at all?‑‑‑I have indicated to him that very little is happening on this matter here.  The other side has been asking for security of costs.

Now, as I understand your most recent affidavit, they consented to an order for security for costs on 14 May, following a discussion with you and junior counsel, Mr Davis?‑‑‑Yes, that was a time when it had become very apparent that the respondents were going to strike out the application.

Now, was that the first time you had communicated effectively with your client on that issue?‑‑‑I have indicated to my client before then a question of fees and, as far as striking out application on the security of costs it was raised with them earlier.

Now, Mr Gani has said in a statement that on each occasion where he rang you, you informed him that there were delays due to personal problems you were experiencing and other difficulties?‑‑‑Yes.

Is that correct?‑‑‑Yes.

What were the nature of the personal problems?‑‑‑Well, I have been having a lot of stress and depression in attending to a sick wife that is deteriorating in front of me every day.  So there is a lot of burden on me.

And could you confirm for his Honour that, I think, your wife is institutionalised.  Is that correct?‑‑‑Yes.

You have children?‑‑‑One.

And the position in relation to your relationship with your client now following these matters coming to attention subsequent to 14 May, is there any impediment that you see to this case progressing by way of instructions from your client?‑‑‑No.

Thank you.  I have no further questions if it please, your Honour.

HIS HONOUR:   Yes.  Any re‑examination, Mr Buss?

MR BUSS:   No, your Honour.

HIS HONOUR:   Yes.  Very well.  You may stand down, Mr Su.

(THE WITNESS WITHDREW)

HIS HONOUR:   Are there any other witnesses that need to be called by either party?

MR BUSS:   No, your Honour.

HIS HONOUR:   Mr McPhee, you did not wish to ask Mr Su any questions, I assume.

MR McPHEE:   No, thank you, your Honour.

HIS HONOUR:   Yes, thank you.

MR McPHEE:   No, thank you, your Honour, I am content to abide by the questioning by Mr Buss.

HIS HONOUR:   Yes, thank you.  I assumed that.  Mr Buss, it may be of help to you if I indicate my tentative feeling in the matter and you can dissuade me from that and I have not reached any final conclusion.  There is no doubt that your client was fully justified in bringing these proceedings and obviously you will have to have the costs of having done so of the bringing the proceedings today but I have just made a note of a number of considerations which lead me to feel that the proper course is the alternative that you seek in your summons rather than the primary relief.  This is not a final conclusion and you can dissuade me from it if you wish, but perhaps if I indicate these and if you wish to dissuade me it can focus your submissions.

The first is the fact that the issue that I have reserved for the Full Court, at least arguably, raises a matter of public law involving the Constitution and its interpretation and, therefore, is a matter which on its face has a certain public importance, quite apart from the importance for the parties.

Secondly, the fact that the applicants themselves are resident overseas and, for all I know, are relying on the advice of Mr Su and are personally innocent and even, perhaps, ignorant of the cause of the gross delays and unaware of the strict view which we take in this country concerning the bringing of proceedings promptly to resolution.

Thirdly, the fact that the applicants are willing to pay into court the sum that you seek, $51,653 as security for costs within a fortnight as a warrant of their personal seriousness and commitment to the prosecution of the proceedings.

Fourthly, the fact that the applicants have instructed their solicitor to retain Mr David Jackson, QC, who is obviously an experienced counsel in questions of constitutional law and that an appointment has been made for 3.30 pm tomorrow afternoon for a consultation with Mr Jackson who will,

no doubt, have a close look at the issue that has been reserved and decide whether it is arguable and whether it is worth proceeding with or not, something which I fear that the applicants have not, to this stage, fully received from their legal representatives.

Fifthly, the fact that the delay that has been occasioned has apparently arisen out of a delay in the fee agreement between the applicants and Mr Su and however, whether that ought to have held up the prosecution of the case stated and the preparation of the basic documents you have made some telling points in your cross‑examination about that but at least now it appears that that fee agreement has been resolved by 14 May and a new fee agreement has been reached so that at least that impediment would be out of the way.

Sixthly, the fact that the delays seem to have been caused by the experience and confusion of Mr Su, who confesses that he would make very little, if any, intellectual contribution to the case but that the matter has now passed into the hands of Mr Jackson and Mr Robson and, seventhly, the fact that strict conditions would be laid down by the Court and no further drift or delay would be tolerated.

Now, that is where I am at the moment.  If you can persuade me that I am wrong on that then I will be persuaded.  You are perfectly entitled ‑ your client is perfectly entitled to feel quite angry at the frank incompetence at the way in which the applicants’ case has been prosecuted.  I used the words “disgraceful” and “intolerable” on the last occasion and they have to be used again today, but behind every confused and inexperienced and even incompetent solicitor is a client and in this case a constitutional issue that has been reserved to the Court, so I would certainly give you your alternative orders, subject to hearing Mr Birmingham, but if you want to argue for the primary orders, then I will listen to you.

MR BUSS:   Thank you, your Honour.  Your Honour, I will make some brief submissions in support of the primary order that we have sought and I will do that, if I may, by drawing out some of the issues that emerge from Mr Su’s evidence and I will then address each of the points that your Honour has put to me and I can do that quite shortly.

The first point that we wish to make is that the preparation of the case stated is not a matter of extreme or, indeed, any complexity.  In our submission, it merely requires a recitation of the material facts.  The critical question of law is the question which your Honour stated in the order which your Honour made on 10 September 2001.  In general, the material facts can be found in the applicants’ summary of argument of 3 October 2000 in matter P53 of 2000 which I put to Mr Su in cross‑examination.

The second point, your Honour, is that plainly as ‑ ‑ ‑

HIS HONOUR:   I accept that first point.  I accept that completely.  It is disgraceful that a simple document has not been prepared in nine months.  There is no other word for it:  disgraceful.

MR BUSS:   Our second submission is that, plainly, any dispute between Mr Su, on the one hand, and his clients, on the other, is on no view a satisfactory explanation for the delay which has occurred.  The third point that we make is that ‑ ‑ ‑

HIS HONOUR:   Can I say on that point, I agree with you objectively.  Objectively, it is no excuse but in Mr Su’s rather confused mind it seemed to have been elevated to some form of excuse and what I have to consider is whether that ought to be brought home to the applicants as distinct from Mr Su.  It would punish Mr Su and perhaps the applicants would have some action against him if the matter were now terminated.  But the applicants, for all I know, think that this is the way things are done in Australia.  It is appalling but that may well be what they think.

MR BUSS:   Yes.  The third point is that Mr Su’s personal circumstances are not an excuse.  They are not an excuse because, first, they are not causally relevant to the failure to prepare the draft case stated.  That was a matter which Mr Su had briefed Mr Robson to do and which appears to have not been done in consequence of the dispute over fees.  So, the explanation in relation to Mr Su’s personal difficulties are not causally relevant to the delay, in our submission.

HIS HONOUR:   I agree with that too, except that if you had a person who was focused, professional and acting in a proper competent manner, then they would be on Mr Robson’s back, as solicitors were always on my back and, no doubt, are on your back and as I as a solicitor was on the back of counsel when they were dilatory, if that is the case.  I just think that the confusion that has arisen may have been contributed to by Mr Su’s personal circumstances but it is a pretty low order issue in this case as far as I am concerned.  I agree with you, it has very little causative relevance.

MR BUSS:   The fourth point is that the explanation given by Mr Su in relation to his personal circumstances in is not new.  It was offered to you in terms, your Honour, on 10 September 2001 and also to the Full Court in the appeal relating to the garnishee order.  So, it is a matter which has been ongoing.

HIS HONOUR:   Yes.  One is tempted to say that if Mr Su is finding it so difficult to perform competently and diligently and effectively the work of a solicitor because of his personal difficulties, he should spare his clients and the courts.  I mean, that is the bottom line and I agree with the point that you make here.

MR BUSS:   And it can be inferred, in our submission, that this is a point that is or should be known to the clients themselves.  It is a small point because the delay does not appear to have been causally relevant here.

The fifth point is that, in our submission, the applicant should not be in any doubt as to the consequences of the further delay since September 2001 because they were provided with a copy of the transcript of the proceedings when we were last before your Honour.  Mr Su said in cross‑examination that he had provided the transcript to the applicants in, I think, about October 2001.

The sixth point we make, your Honour, is that this is not a case where the respondents cannot demonstrate some prejudice from the delay and in looking at the delay, one needs to look at the totality of the delay, that is, the delay since September 2001 and the substantial delay before September 2001.  That prejudice, as is apparent from Mr Woodmore’s affidavits and also Mr Herbert’s affidavits, is in relation to the completion of the winding up and the payment of creditors, in particular the priority creditors, the former employees who, it appears, will be able to be paid out in full who are simply left waiting.  It might be said they have waited a long time all ready but, in our respectful submission, that is no real answer and cold comfort to them. 

Mr Herbert has been deposing to the fact that he receives several telephone calls per week at his office from creditors inquiring as to the progress of the winding up and when the creditors may expect to be paid.  In our submission, when one is evaluating issues of prejudice to the applicants personally, one also has to put in as high an order, in our respectful submission, the prejudice to the creditors.

Perhaps if I can draw your Honour’s attention to the salient passages in the affidavits.  There is the affidavit of Mr Herbert.

HIS HONOUR:   Yes.  I had read Mr Herbert’s affidavit before coming into Court and I found the matters set out in the second affidavit, the shorter affidavit, very relevant because it makes the point that a liquidation is not simply an inter partes matter, it is being held up and it affects hundreds of other people.  People cannot just expect to be incompetent and confused at the cost of hundreds of fellow citizens.  It is disgraceful.

MR BUSS:   Yes.  It is, indeed, something which has – well, as your Honour knows, a liquidator is an officer of the court and has a number of important statutory functions which must be carried out in the public interest.  Your Honour has referred to that.  I need only draw brief attention to the affidavits of Mr Woodmore which really depose to similar matters of prejudice.

HIS HONOUR:   Well, unfortunately, they show that this is not confined to the proceedings in the High Court.  This sort of behaviour is happening in the Supreme Court of Western Australia as well.

MR BUSS:   Yes.

HIS HONOUR:   You really have to ask yourself whether the Law Society of Western Australia does not have an obligation in a case like this to protect clients.  I mean, we are dealing only with these applicants but there are other persons who are relying on Mr Su as a person held out as an officer of the court with competence and diligence to perform his duties for his clients and other people just do not know this terrible chronicle that has been revealed in these proceedings.  Somebody ought to look at it.

MR BUSS:   Your Honour can rest assured, I think, that something can be and will be done now that the full story has been revealed in this application.  That something will be done.

HIS HONOUR:   I am not prejudging the matter because I do not know the full story but certainly, on the material that was revealed to me on the last occasion and on this occasion, there is at the very least a very sorry saga of inexperience, confusion and lack of focus which is not what one expects of a legal practitioner in this country.  It is just unacceptable.

MR BUSS:   Indeed, your Honour.  Your Honour, the sixth point is that the applicants in their outline contend that it would be difficult to assess damages if the proceedings were to be struck out and the applicants left to pursue any remedy they might have against their solicitor.

In our submission, this Court has explained in a number of relatively recent cases, including, for example, Sellars, the proper approach to the assessment of damages for the loss of a chance and, in our submission, any perceived difficulty in assessing any damages claim that the applicants might have does not, of itself, justify refusing to strike out the proceedings.

Seventhly, I should mention that the grounds in the notice of appeal to the Full Court in respect of which your Honour made the removal order, appear on analysis, to raise only the issue which was removed by your Honour’s order and that might be thought to be something that is material to the exercise of the discretion. In other words, under section 40 of the Judiciary Act your Honour removed, in essence, the matters which were live before the Full Court.

So, if the matter were to be dismissed for want of prosecution, the cause which was before the Full Court on appeal has, in substance, been removed to this Court so if this Court were to dismiss the case for want of prosecution, then it would be dismissing, in essence, the cause before the Full Court that had been removed to this Court and on our analysis of the grounds ‑ ‑ ‑

HIS HONOUR:   All that one would do would be to revoke the removal of the order removing P53 of 2000 and the question removed into this Court and that would leave alive the proceedings in the cause in the Supreme Court of Western Australia for any action that the Full Court thought was appropriate, having regard to the delays in that court.

MR BUSS:   That is why we brought the application to dismiss for want of prosecution, to avoid what, in our respectful submission, would be an unsatisfactory result where, no doubt, the applicants may well go back to the Full Court and say, “We haven’t delayed before the Full Court because the matter was the subject of an application for removal to the High Court”.

HIS HONOUR:   But it would not be just for me to be passing upon the merits of the proceedings in the Full Court that I have not been involved in.  I would only be dealing with so much of the cause as is removed into this Court in terminating the removal.

MR BUSS:   True, your Honour, but that is why we sought and seek the strike out for want of prosecution rather than, with respect, merely the revocation of the removal order.

HIS HONOUR:   Yes.  The problem with revocation of the removal is that the applicants might come back tomorrow and try to move the Court again for a removal.

MR BUSS:   Yes, that is right.

HIS HONOUR:   I mean that would not terminate the agony.

MR BUSS:   That is why we amended the summons in the manner we did.  Now, if I can briefly deal with the points that your Honour put to me, we having put before your Honour the issues to be evaluated in taking into account in your Honour exercising your discretion on this application.  Your Honour’s first point to me was that the issue reserved, at least arguably, involves a matter of public importance.        In our submission, no doubt it does but if the matter is not determined by the Court in the context of this application, doubtless the point will or may arise in other circumstances and if it does, then it can be the subject of an application for removal, and there is no apparent ongoing serious prejudice to individuals throughout Australia if this matter is not determined in the context of this proceeding, important no doubt that it is, that it can be the subject of some separate application by any party who is properly advised to bring it.

The second point that your Honour made was that the applicants are resident overseas.  No doubt that is true but that, in our submission, is a matter of relatively minor significance compared to all of the other matters that we have put before your Honour and, indeed, when evaluated against the prejudice to the creditors in the winding up.

The third point is that the payment into court is some comfort in relation to the obtaining of the fees, but that does not, of itself, cure the prejudice from the delay and it does not ensure that there will be expeditious progress in the proceedings in the future.

HIS HONOUR:   No.  I recognise it is a separate question.  It only arises if you do not succeed on the first application, the primary application.

MR BUSS:   Yes.  The fourth point that the applicants have retained Mr Jackson, that is, with respect, a very positive development in terms of the direction of the case but, again, is really something that is relevant in a prospective sense as to what hopefully might happen in the future if the proceedings are allowed to move forward.

HIS HONOUR:   Well, you are entitled to ask why did they not do this before.  Why has it lasted until now?  Why is it only in response to your summons?

MR BUSS:   Well, perhaps that is the point, that it is simply in response to our summons, that in the end ‑ ‑ ‑

HIS HONOUR:   At least it is a response.

MR BUSS:   It is a response.

HIS HONOUR:   As you quite fairly acknowledge, it is possibly the only positive thing so far to come out of it, except for the offer of the security for costs.

MR BUSS:   Yes.

HIS HONOUR:   Everything else is rather negative and depressing.

MR BUSS:   The delay appears, in essence, to have arisen out of the dispute in relation to fees and it appears from the cross‑examination of Mr Su that the applicants were at least aware that little or nothing was being done.  Mr Su referred to the fact that he told the applicants in substance that he could not progress the case.  I think those were his words.  When one takes those conversations with the applicants in combination with the transcript of the proceedings in September 2001 which was sent by Mr Su to the applicants, then the applicants cannot be put in the category of those litigants who were misled by their legal advisers as to progress in an action or who did not have any understanding at all as to the consequences of delay.

The summons for relief and affidavits

The summons for directions filed by the second respondent seeks order in the alternative, either (1) that proceedings No P68 of 2001 be dismissed for want of prosecution; and (2) that the order for removal in P53 of 2001 be revoked; or (3) that the foregoing orders be made unless within seven days of the order of this Court the applicants serve on the respondents a draft case stated for their consideration; and (4) within 14 days of order the applicants give security for the second respondent’s costs of the cause by paying the sum of $51,653 into court, in default of which further proceedings would be stayed.  The respondents ask that the applicants pay their costs of this summons in any event.

A number of affidavits have been read today.  For the second respondent, two affidavits by Mr Francis Woodmore, a director of the first respondent, were read.  The first of these records the state of proceedings in the Supreme Court of Western Australia, where the first respondent has recovered a judgment of $5.5 million, together with interest, against Mr Sumampow, one of the applicants in this Court.  It appears that Mr Sumampow has appealed against that judgment to the Full Court of the Supreme Court of Western Australia.  However, the affidavit of Mr Woodmore discloses that the same delays have attended the proceedings in that court as are revealed in the proceedings before me.

In effect, the history tends to support the inference that delay is endemic in proceedings involving the applicants and their solicitor, Mr Su; that nothing much happens until there is a real danger of dismissal of the proceedings for want of prosecution; and that the orders that are then made at the last minute are complied with, including orders for the security for costs.

A supplementary affidavit of Mr Woodmore of 17 May 2002 details the great inconvenience occasioned by the delays which the applicants’ proceedings in this Court have caused to the first respondent.  By reason of those proceedings the first respondent has been kept out of a substantial portion of its money judgment.  The sum involved is estimated by Mr Woodmore to be approximately $2 million that would be paid to the first respondent pursuant to a garnishee order if the proceedings were completed.

In addition, Mr Woodmore deposes that the first respondent, independently of the Supreme Court proceedings, has lodged a claim on the liquidator for $1.8 million approximately.  The first respondent asks that the distribution of the liquidation of the second respondent be no further delayed.  Mr Woodmore complains that the same excuses are being offered today, on behalf of the applicants, as were previously raised in the Supreme Court and this Court.  These include delays in communication and personal failings of the applicants’ solicitor, Mr Su.  Mr Woodmore points out that this has been a common pattern in these proceedings.  I can only agree.

In addition to these affidavits, two affidavits by the liquidator of the second respondent, Mr Herbert, have been filed and read.  Mr Herbert points out that, pending the resolution of the proceedings in this Court, he is unable to terminate his public duties as liquidator.  The finalisation of the liquidation has been delayed by reason of the pendency of the proceedings in this Court.  The delay has affected hundreds of claims by unpaid employees, which claims have been held up pending the outcome of the proceedings in this Court.

No application was made on behalf of the applicants to cross‑examine either Mr Woodmore or Mr Herbert.  I unreservedly accept what they have said.

For the applicants, three affidavits by Mr Tien Shang Su, their solicitor on the record, have been filed and read.  One of these affidavits annexes an unsworn but signed statement by Mr Herman Gani, a company director resident in Jakarta, Indonesia.  He is the fourth‑named applicant in this Court.  This statement says that the delays are not the fault of the applicants themselves but arise, in effect, from “personal problems” that Mr Su has been experiencing in the relevant time.

Mr Gani indicates that the applicants are prepared, as at 15 May 2002, to consent to an order that they provide security for costs in this Court, as sought by the second respondent, and that necessary funds will be paid into Court within 14 days of today to that end.  Mr Gani also states that he has given instructions to Mr Su to retain Mr David Jackson, QC, appear for the applicants in the proceedings.

The case for peremptory termination

Mr Su gave oral evidence before the Court today.  His evidence demonstrated a great deal of confusion on his part.  Mention was made of his retainer of Mr Robson of the Western Australian Bar and the fact that he was waiting for Mr Robson to prepare the draft case stated.  However, the preparation of that document is a relatively straightforward matter.  On the evidence before me I would not attribute to Mr Robson the gross delay in the preparation of that document that have occurred between September last year and now.  The delay and the confusion appear entirely the fault of Mr Su.

Counsel for the second respondent, which is effectively the moving party in these proceedings, made a number of very telling points in support of the primary relief which his client sought, namely the peremptory termination of the proceedings in this Court.  As I indicated during the course of his argument, I agree with most of the propositions that he advanced.  The only issue before me is whether the primary relief sought should be granted now or whether one last effort should be made to bring these proceedings to fruition in a proper fashion.

The reasons for affording one further chance

In the end, I have concluded that the latter is the appropriate course.  It is always a serious matter for a court to terminate proceedings without a hearing on the merits.  In all truth, the applicants have been afforded a facility for such a hearing by this Court and have not taken advantage of that facility as they should have done.  However, for a number of reasons, I am not convinced that, at this stage, the primary relief should be granted.

My reasons are as follows: 

1. The fact that the issue reserved by me for the opinion of the Full Court involves, arguably, an important matter of public law concerning the Australian Constitution and its interpretation.  The second respondent properly conceded that the issue was important to persons other than the parties.  In my view, at least arguably, it is;

1. The fact that the applicants are resident overseas and have been necessarily reliant on advice from Mr Su.  Counsel for the first respondent pointed out that not much weight can be given to this consideration.  By virtue of a previous order made by me, the transcript of the previous hearing was supplied to the applicants by Mr Su so that they could be personally aware of the serious delays for which Mr Su was then responsible.  I also take into account the fact that Mr Gani’s unsworn affidavit reveals that he was in regular contact with Mr Su.  Mr Su acknowledged today that he had spoken regularly on the telephone to representatives of the applicants, including in Bahasa Indonesia, a language which he says he can speak;

1. The fact that the applicants are now willing to pay into Court the sum of $51,653 as security for the costs sought in the summons.  This represents a warrant of their seriousness and personal commitment to the prosecution of the proceedings before the Full Court if they are so advised by Mr Jackson;

1. The fact that the applicants have instructed their solicitor to retain Mr David Jackson, QC, who is a most experienced counsel in questions of constitutional law.  Mr Jackson will be able to advise the applicants and to ensure that, if the matter proceeds to a hearing, the Court will receive proper assistance in written and oral argument.  Mr Jackson has now been briefed.  Mr Robson of counsel has agreed to act as his junior.  As I was informed today, the costs of Mr Jackson’s fees have been covered;

1. The fact that, however undeservedly and unreasonably, the delay since last September seems to have been caused by a delay in the re‑negotiation of a fee agreement between Mr Su and the applicants.  This renegotiation now appears to have been settled.  According to Mr Su, a new agreement was made with the applicants on 14 May 2002.  Doubtless the new agreement was prompted by the urgencies occasioned by the summons now before me;

1. The likelihood that the delays have been caused by confusion and possible inexperience on the part of, and possible depression suffered by, the applicants’ solicitor, Mr Su.  In his oral evidence today Mr Su acknowledged that he would have “very little” intellectual contribution to the proceedings in this Court.  I have to say, on the basis of the material before me, that I think that acknowledgment may represent an overstatement.  However, Mr Su indicated that he had been suffering stress and depression as a result of the illness of his wife and his responsibility for their child.  I do not ignore that consideration, although its relevance to the true cause of the delay since September 2001 is debatable;

1. The fact that strict conditions could be laid down that would ensure that no further drift occurred and that the matter would be kept under the closest attention of this Court.  Obviously any further delays will not be tolerated.  They will result in the instantaneous termination of the proceedings in the Court; and

1. The fact that the costs of the proceedings of today will be provided for.

Referral to the Legal Practitioners’ Complaints Committee

There is one further consideration.  I indicated to counsel for the applicants that, having regard to the experience on this occasion and on the previous occasion, it seemed proper to me to direct the Registrar to bring to the notice of the Law Complaints Officer of the Legal Practitioners’ Complaints Committee of Western Australia the transcript of the proceedings on the previous occasion and on this occasion and the reasons for decision which have been given by me on both occasions.  Counsel for the applicants did not demur to this course.  In doing so, I do not wish to overstate the matter simply because such a direction is made by a Justice of the High Court.  However, it is possible that the conduct instanced on this and the previous occasion may be affecting other clients of Mr Su.  That is a matter upon which the Legal Practitioners’ Complaints Committee of Western Australia may wish to satisfy itself in accordance with the provisions of the Legal Practitioners Act 1893 (WA).

Orders

The orders that I make are:

1.  Order that the applicants within seven days serve on the respondents a draft case stated for their consideration and comment;

2.  Order that within 14 days the applicants, Robby Sumampow, Jokky Hidayat, Kwik Soen Hoek and Herman Tjahjahdi Gani, provide security for the costs of the proceedings in this Court, as costs of the cause removed, in the sum of $51,653 in a form acceptable to the Registrar of this Court;

3.   Relist the application by video link to Perth at 11.00 am Eastern Standard Time (9.00 am Western Australian Time) on 6 June 2002, when the primary relief sought in the summons will be reconsidered in the light of the applicants’ compliance with orders 1 and 2;

4.   Order the applicants to pay the second respondent’s costs of this summons;

5.   Certify for the appearance of counsel in public chambers; and

6.   Direct the Registrar to provide to the Law Complaints Officer of the Legal Practitioners’ Complaints Committee of Western Australia the transcript of the proceedings in this Court, both on 3 and 10 September 2001 and of this day.

Are there any further orders that you seek or any qualification of those orders, Mr Buss?

MR BUSS:   Only one, your Honour, and that is that in this State, by virtue of the Legal Practitioners Act, there is a separate statutory body which regulates legal practitioners.  There is an office called the Law Complaints Officer and the holder of that office is Ms Diane Howell and there is a committee that is established under that Act, which is called the Legal Practitioners’ Complaints Committee, and that is the appropriate body, in our submission, to whom the Registrar ought refer the transcripts, rather than the Law Society.  So it is the Law Complaints Officer, Ms Diane Howell, and she is a delegate of the Legal Practitioners’ Complaints Committee, which is also set up under the Legal Practitioners Act in this State.

HIS HONOUR:   I will amend the transcript and that order to substitute for “the Law Society of Western Australia” “the Law Complaints Officer of the Legal Practitioners’ Complaints Body” – is that what it is called?

MR BUSS:   Committee – Legal Practitioners’ Complaints Committee, your Honour.

HIS HONOUR:   Very well.  The amendments will be made to accommodate that position.  Is that under a statute of the Parliament of Western Australia, is it?

MR BUSS:   It is the Legal Practitioners Act 1893, as amended.

HIS HONOUR:   Very well.  The transcript and the order will be amended accordingly.

MR BUSS:   Thank you, your Honour.

HIS HONOUR:   I do emphasise once again that I am not in any way prejudging Mr Su because that has not been part of the matter before me.  I am simply directing it to the proper authority so that they can consider, with all fair procedures to Mr Su, the significance, if any, of what is revealed by the transcript.

MR BUSS:   Thank you, your Honour.

HIS HONOUR:   Do you have any comments on the orders or on what I have just said, Mr McPhee?

MR McPHEE:   No, thank you, your Honour.

HIS HONOUR:   Mr Birmingham?

MR BIRMINGHAM:   No, your Honour.

HIS HONOUR:   If you would make it absolutely clear, Mr Birmingham, that when this matter is returned on 6 June, subject to anything completely unexpected, if orders 1 and 2 have not been complied with, then I will give the primary relief sought today by the second respondent.

MR BIRMINGHAM:   Your Honour may be confident of that.

HIS HONOUR:   Thank you.  The Court will now adjourn.

AT 1.13 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 6 JUNE 2002