Truth About Motorways v Macquarie Infrastructure Investment Management

[1999] HCATrans 104

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S186 of 1998

B e t w e e n -

TRUTH ABOUT MOTORWAYS PTY LIMITED

Applicant

and

MACQUARIE INFRASTRUCTURE INVESTMENT MANAGEMENT LIMITED

Respondent

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 19 APRIL 1999, AT 9.32 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If your Honour pleases, I appear with my learned friends, MR T.D. CASTLE and MR J. CLARKE, for the respondent in the proceedings who is the applicant in the present application.  (instructed by Mallesons Stephen Jaques)

MR J. BASTEN, QC:   I appear with MR I.R. PIKE for the applicant in the proceedings and the current respondent.  (instructed by Maurice & May Co)

HER HONOUR:   Thank you.  You have agreed on a draft stated case, have you?

MR JACKSON:   Yes.  Your Honour, could I say this:  there will be a draft with the documents your Honours has.  Some amendments have been made to it.  Could I hand to your Honour two documents:  the one in white paper is the form that your Honour has, together with - have the handwritten amendments that have been made to result in the version which is on the cream paper.

HER HONOUR:   Thank you very much.  I will just check those amendments because I had checked it beforehand.

MR JACKSON:   Yes.  May I say something when your Honour has done that in relation to one aspect of it?

HER HONOUR:   Yes.  Well, I do not understand paragraph 11, if that is what you were going to come to.

MR JACKSON:   Yes, it is, your Honour.  What I was going to say is this:  you will have seen in paragraphs 6 and 7(i) of the reply there are allegations about - in part, admissions, but allegations about the standing; the facts which may or may not give standing to the respondent.  Now, I have discussed with my learned friend an aspect that arose from paragraph 7(i) of the reply and - - -

HER HONOUR:   We should make that clear what it refers to, should we not?

MR JACKSON:   Your Honour, could I just say this:  in relation to paragraph 7(i) of the reply, the way in which it is presently framed is that the applicant says it has an:

interest in the subject of the subject matter of the claim, although not an interest -

et cetera, and my learned friend proposes to amend that slightly so that the nature of the allegation is put more precisely.  That being so, what is sought to be done by the amendment to paragraph 11 is to refer to three things, that is, the facts alleged in the document itself; secondly, those admitted by the pleadings and, thirdly, those alleged by the applicant as to its standing which picks up paragraphs 6 and 7(i) of the reply.             Your Honour, I do not think there are any other paragraphs that could relevantly be picked up.

HER HONOUR:   Perhaps I really should ask Mr Basten this.  When will the reply be further amended?

MR BASTEN:   I had hoped that there would be someone here by now, your Honour.  The amendment which Mr Jackson referred to in 7(i) is simply to delete "It has an" in the first line, so that it starts, "Its interest" and then it continues:

in the subject matter of the claim, although not an interest which would satisfy the common law test of standing -

and then delete "in the absence of" and say, "is that vested in it by", then the sections, so as to make it clear that the interest is the statutory interest and nothing else.

HER HONOUR:   Yes.  Thank you, Mr Basten.  Well, if the pleading is amended in those terms, I would have no difficulty with stating a case in accordance with the yellow document.

MR JACKSON:   Thank you, your Honour.  My learned friend has some other amendments that he proposes to make to the reply to which there is no objection.

HER HONOUR:   Yes.  Now, do you need leave to amend?

MR BASTEN:   Yes, I think, I do, your Honour.

HER HONOUR:   And there is no objection to leave.

MR JACKSON:   No.

HER HONOUR:   It looks as though the documents are here now.

MR BASTEN:   I now have a document I can hand your Honour, at least.

HER HONOUR:   Yes.  Well, do you want to check it beforehand?  It might be wise.

MR BASTEN:   I probably should do, your Honour.  I do not want to delay your Honour but it will not take me a moment.  Yes, I think that picks up the amendment which - I had checked the other amendments earlier.

HER HONOUR:   Very well, thank you.  All I need do is give you leave to file a further amended reply in accordance with the draft document handed to me today and placed with the papers with such necessary amendments as might appear upon a rereading of the document - just in case there is something wrong with it - and, by consent, state a case in terms of the document headed "Draft Questions Reserved", initialled by me and placed in the papers.  I certify for the attendance of counsel in chambers.  Is there anything else that is necessary?

MR JACKSON:   No, your Honour, I think the matter will be set down in the ordinary course and at that stage if some time might be fixed for the delivery of summaries of argument and so on.

HER HONOUR:   Yes.  I am not in a position to indicate that, but it may be sufficient to do your summaries argument in accordance with the ordinary rules.

MR JACKSON:   Yes, your Honour.

HER HONOUR:   Thank you.  Thank you, gentlemen, for that.  The Court will adjourn.

AT 9.39 AM THE MATTER WAS CONCLUDED