UBS AG v Scott Francis Tyne as Trustee of the Argot Trust & Anor

[2017] HCATrans 184

[2017] HCATrans 184

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B7 of 2017

B e t w e e n -

UBS AG

Applicant

and

SCOTT FRANCIS TYNE AS TRUSTEE OF THE ARGOT TRUST

First Respondent

CLARE ELIZABETH MARKS

Second Respondent

Application for special leave to appeal

BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY BY VIDEO LINK TO BRISBANE

ON FRIDAY, 15 SEPTEMBER 2017, AT 10.14 AM

Copyright in the High Court of Australia

MR J. STOLJAR, SC:   May it please the Court, I appear with my learned friend, MR L.T. LIVINGSTON, for the applicant.  (instructed by King & Wood Mallesons)

MR S.F. TYNE:   May it please the Court, I am appearing as trustee of the Argot Trust. 

BELL J:   Thank you.

MR STOLJAR:   Your Honours, the point of principle raised by this application is as follows:  can there be an abuse of process if one of the original plaintiffs to earlier proceedings brings new proceedings agitating the identical factual issues against the identical defendant if the earlier proceedings were judicially determined otherwise than by a trial on the underlying merits?

The majority of the Full Court below said no.  The majority held that in those circumstances a finding of abuse was not open, and the reason for that was because their Honours were of the view – using their Honours’ words – that in those circumstances the defendant to the new proceedings simply had to do what it otherwise would have had to do in the earlier proceedings.

KEANE J:   But later rather than sooner.

MR STOLJAR:   Yes, that was the view taken by the majority, and his Honour Justice Dowsett ‑ ‑ ‑

KEANE J:   Well, the majority took the view that later rather than sooner was not a prejudice.

MR STOLJAR:   Yes, that is so, and his Honour Justice Dowsett took the contrary view because his Honour Justice Dowsett said, well, a finding of abuse in those circumstances is still open because dealing with the matter later, as your Honour Justice Keane has put to me, may still give rise to an abuse having regard to, in the present case, a combination of delay, increased costs, vexation and a waste of public resources arising from the defendant and hence the court dealing with the same matter twice.

BELL J: Prominent in his Honour’s consideration was the provisions of section 37M and the question of how that provision and its analogues bite, including in consideration of perhaps older decisions touching on this question.

MR STOLJAR:   Yes, quite so.  I was going to come to that in a moment but the majority, of course, considered comprehensively and in detail older authorities such as Reichel v Magrath and the like and, as his Honour Justice Dowsett pointed out, the application of some of those older authorities in the light of section 37M and its cognate provisions is a matter that has not been explored fully, certainly by this Court.

Now, it is clear from decisions of this Court – for example, Tomlinson and Timbercorp – that an abuse of process is capable of application in any circumstance in which the use of courts’ procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute and, in our respectful submission, the decision of the majority cuts across that broad and flexible doctrine in an impermissible way.

We will endeavour to articulate in a moment some of the difficulties with – or that we say arise with the majority’s approach but first, as is always the case, consideration of the point of principle is illuminated by a brief sketch of the factual circumstances on which the principle arises - if I can deal then with the facts very briefly.

In the years leading up to 2010, UBS – my client – through its Singapore branch provided credit facilities to a Jersey company called Telesto, or Telesto Investments Limited.  In about October 2008, in the climate that your Honours are well familiar with that obtained at that time, Telesto’s bond portfolio abruptly and seriously diminished in value and without trawling through the detail after negotiations and a standstill agreement and the like were entered into, UBS in 2010 finally commenced proceedings in Singapore against Telesto as principal debtor and against Mr Tyne who had given the guarantee of Telesto’s obligations.

Dealing with the progress of those proceedings, they proceeded in Singapore and concluded in a final hearing before Justice Lai with orders for declaratory relief and costs in favour of UBS.  However, by that stage, neither Telesto nor Mr Tyne had remained or kept any active involvement in the Singapore proceedings.  They elected not to appear at the final hearing and the final hearing proceeded in their absence. 

There was a short trial in which Justice Lai asked questions of witnesses and witnesses were called and then Justice Lai delivered a judgment that it proceeded in the absence of the two defendants.  There seems no controversy that the Singapore proceedings culminating in the manner that I have just described were dealt with on the merits. 

Now, going back to 2010, shortly after the commencement of the single proceedings, Mr Tyne in his personal capacity and the then trustee of an entity called the Argot Trust and Telesto commenced proceedings in the Supreme Court of New South Wales in the commercial list alleging that UBS engaged in misleading and deceptive conduct and gave negligent advice back in 2007 and 2008 in relation to the investments Telesto had made in its bond portfolio.

Mr Tyne was at all times the guiding mind of Telesto and the Argot Trust.  In 2011, the High Court of Singapore, in separate proceedings from those that I have made reference to, granted an anti‑suit injunction preventing Telesto, Mr Tyne in his personal capacity and the Argot Trust from prosecuting the New South Wales Supreme Court proceedings, or indeed any other proceedings against UBS. 

In 2012, at least two things happened in the New South Wales Supreme Court proceedings.  First, a temporary stay of the New South Wales proceedings was granted by Justice Ward pending the outcome of the Singapore proceedings, and also Justice Ward granted leave to the three then plaintiffs to amend their originating process in the Supreme Court proceedings, with the effect that – or the effect of the amendment was that without objection by UBS, Mr Tyne and the Argot Trust withdrew as plaintiffs and Telesto pressed on with the New South Wales proceedings on its own.

Then, as I have indicated to your Honours, the Singapore proceedings were then in 2012 resolved favourably to UBS in the manner that I have described, and then UBS put on an application in the New South Wales Supreme Court proceedings seeking, in a nutshell, to convert the temporary stay into a permanent stay, and ultimately Justice Sackar in 2013 permanently stayed the Supreme Court proceedings on the basis of res judicata and issue estoppel arising out of the judgment that had been obtained the previous year in Singapore.  As mentioned, by this time Telesto was the sole plaintiff in the New South Wales proceedings.  Telesto did not appeal from Justice Sackar’s judgment and those proceedings thereby were finally determined.

Now, in 2014, the following year, Mr Tyne as trustee of the Argot Trust – and pausing there, that is of course one of the three plaintiffs, original plaintiffs, in the New South Wales proceedings and also one of the injunctive parties by the anti‑suit injunction in Singapore.  So the Argot Trust and Ms Marks, who was Mr Tyne’s spouse, commenced the proceedings below in the Federal Court raising, in essence, the same factual matters, certainly the same underlying factual matters.  There were differences in the way reliance was put and the like but it was the same substratum of facts.  There seems to be no controversy about that.

Those proceedings were in due course permanently stayed by the primary judge as an abuse, and then, as your Honours know, the majority overturned that decision.  Justice Dowsett would have upheld the position taken by the primary judge.  There is one – or at least one other twist in the tail and that is after the application for special leave was put on, my client discovered that Ms Marks had been in about June 2014 declared bankrupt and that led to amendments to the special leave application but more substantively it also meant that the proceedings below had to be, in effect, either adopted or not by her trustee in bankruptcy and the trustee in bankruptcy in substance elected not to carry them on.  So those proceedings have now been dismissed insofar as they affect Ms Marks.

BELL J:   It might be noted there is no appearance for Ms Marks who remains second respondent in these proceedings.

MR STOLJAR:   Yes, yes.  Now, could I then come to the arguments which we say arise having described those facts?  The erroneous or we say erroneous principle which emerges from the decision of the majority, as I indicated at the outset, is that if one of the original plaintiffs to earlier proceedings, in this case the Argot Trust, brings fresh proceedings – that is, the Queensland proceedings – against the same defendant raising the same facts, in the majority’s view it was simply not open to a court to find that the new proceedings are an abuse if the earlier proceedings were judicially determined otherwise than through a trial on the underlying merits.

We say that the vice inherent in that principle is that it pays no regard to whether the bringing of the new proceedings in and of itself at a later date would bring the administration of justice into disrepute, or as your Honour Justice Bell mentioned to me, whether it was consistent with section 37M of the Federal Court of Australia Act or, for that matter, the principles of finality and litigation that your Honours well know have been described on a number of occasions by this Court.  In substance, the applicant contends not only that it is in fact open for a court in those circumstances to take those matters into account but, furthermore, those matters were determinative in the present case for the reasons illuminated by Justice Dowsett.

We make two further points before stressing some of the other errors which we say are inherent in the approach taken by the Full Court.  The first is this was not an ordinary case of a party discontinuing proceedings and then, at some later date, seeking to re‑ventilate those proceedings either in the same form or in some slightly different form.  Where there has been a complete cessation of the litigation, it may be that different issues could arise.  But this was a situation in which two of the plaintiffs discontinued or at least ceased to be active and one remained and continued to prosecute the litigation.

Secondly, there of course has been hearing on the merits, namely the hearing in Singapore, and what happened before Justice Sackar was that his Honour resolved the matter on the basis of res judicata and issue estoppel.  To that extent, the New South Wales proceedings proceeded to a hearing on the merits, but of course it was confined to the issue which was dispositive of the proceedings before Justice Sackar.  So the underlying factual issues were not explored before Justice Sackar.  But that, we would respectfully submit, does not preclude the prescription hearing on the merits applying at least in the limited sense that I have described.

We then come to a number of further points which we say raise questions about the principle enunciated by the Full Court.  Many of these are canvassed in the dissenting reasons of Justice Dowsett.  But where proceedings have been discontinued and similar proceedings subsequently commenced, a right‑thinking person, to use the language that Justice Dowsett used, or the test, would infer that there has been, by those facts of themselves, a loss of time, an increase in costs and some degree of repetition of process and vexation to the other party.

A person viewing those events, and considering the position of my client in those circumstances, would well perceive, we would submit, that if the administration of justice allows that to occur – certainly without any explanation at all being brought forward – then that administration is, and if I can pick up his Honour’s words from the decision below, inefficient, careless about the incurrence of costs by the parties and profligate in the application of public moneys.

KEANE J:   Whether or not one presses into service the right‑thinking person and speculates about the right‑thinking person’s views of these things, objectively speaking, those things that you just said about efficiency, or lack thereof, are just true.

MR STOLJAR:   Well, yes. It may be that using the test of right‑thinking person could introduce other issues which are unnecessary and may be that, as your Honour has just put to me, to simply say objectively considering the circumstances those matters arise, yes, that is an approach that we would respectfully embrace. Then, his Honour Justice Dowsett, as I think I have already discussed with your Honour Justice Bell, questioned the utility of seeking to identify and rely exclusively or even to a large extent on some of the older authorities, particularly when they were decided well prior to section 37M of the Federal Court of Australia Act and the cognate decisions at State level.

A further point is that his Honour said the position of the Argot Trust brings the question of abuse into stark relief because the Argot Trust – one could understand, to some extent, the Argot Trust not bringing its claims forward in the Singapore proceedings if it perceived some juridical advantage to bringing them forward in New South Wales, but that then begged the question why did not the Argot Trust bring forward its proceedings in New South Wales having ceased its involvement at a time when it could have conveniently brought forward, or indeed just continued with its claims, in New South Wales.  His Honour Justice Dowsett observed at paragraph 24:

If the Trust were the sole appellant . . . the abuse of process would be clear.

That is in AB 137.  About line 32 is the line “the abuse of process would be clear” on page 137 of the application book, and given that Ms Marks would now - still nominally a party to this application but given what has occurred, would appear to not be – have any active involvement, that position, as it were, crystallised in respect of the Argot Trust and simplified the question which will, if special leave were to be granted, would come before the Full Court.  It would just be focusing on the Argot Trust in isolation.

BELL J:   Can I just inquire, your proposed second ground which complains of the errors which you assert the majority found but of which you say had not been ventilated at the hearing, certainly paragraph 108 is central to the complaint you make, the substance of the complaint you make in relation to the first ground.

MR STOLJAR:   Yes.

BELL J:   Yes.  Is the second ground pressed as a special leave ground?

MR STOLJAR:   It really emerged much more starkly in respect of Ms Marks whose position had never been ventilated, so I do not take that further as a special leave point.

BELL J:   And ground 3, which takes up the question of whether or not the primary judge’s reasons included consideration of the Singapore proceedings.

MR STOLJAR:   Well, yes, that is because the majority took the view that because UBS had not ventilated that issue through a notice of contention, it was not open to UBS to raise it.  We say that it was not necessary for a notice of contention, and that was another point that emerged only on the hearing of the appeal.  But we only press it to the extent that we need to, in describing the background facts, take your Honours through what happened in Singapore.

BELL J:   That is what I wanted to raise with you.  It is all bound up with the complaint that you make in your first ground.

MR STOLJAR:   Yes, yes.

BELL J:   Yes.

MR STOLJAR:   Unless there is anything further, those are my submissions, may it please the Court.

BELL J:   Thank you, Mr Stoljar.  Yes, Mr Tyne.

MR TYNE:   If it please the Court.  So the second ground of the proposed appeal has now been dropped and I think we can deal quickly with the third, because the third, as your Honour is aware, touches upon the issue about whether or not Justice Greenwood took into account the Singapore proceedings – whether he gave that any weight in his decision to make a permanent stay.  We say it is very clear on the reading that his Honour did not.  Justice Edelman reached the same view in his judgment which you can see at page 106 of the application book at paragraph 29.  It begins:

One matter upon which his Honour did not place weight –

Then goes on to explain why his Honour placed no weight in those proceedings.  So we say that point is plain, but we also say that it was conceded away at the hearing before the Full Federal Court.  If I can please refer your Honours to page 321 of the application book, line 20 we see Justice Jagot squarely raise the issue:

Well, I want to challenge you on the Singapore proceedings.

The discourse between the Bench and the Bar relevantly goes through until the next page, round about line 8, I will paraphrase whilst your Honours read, if I might.

BELL J:   Well, Mr Tyne, I may be failing to grasp the point that you raise, but at line 39 on page 321, in response to Justice Jagot’s observation that there is no notice of contention, Mr Stoljar says:

No, there’s [no] notice of contention, but he did ‑ ‑ ‑

Then there is a further exchange with her Honour and Mr Stoljar says:

Only because his Honour treated that as part of the relevant factual matrix.

MR TYNE:   Yes.

BELL J:   So, as I would read it, the contention that is being advanced is that there was no need for the notice of contention for the reasons Mr Stoljar gives there.  Not getting into the merits of the matter, it is ‑ ‑ ‑

MR TYNE:   Yes.  My point is to the point being conceded – the point being conceded is that his Honour Justice Greenwood did give no weight to the matter.

BELL J:   Well, yes.

MR TYNE:   If your Honour reads on to the next page, you will see.  So there is the extract that your Honour has just pointed out but Justice Jagot says, yes:

But not [a] relevant fact . . . in one sense . . . when it came to . . . the Singapore proceedings . . . put to one side by his Honour.  Everything that he reasoned to get a permanent stay was what had happened in the New South Wales proceeding.

Mr Stoljar says yes, so we say that point has been conceded.  Whether there is a necessity for a notice of contention or not should not now be grounds for appeal to this Court, given the way the matter was conducted in the court below.  That is the point I seek to make.

BELL J:   Well, there is a controversy between the parties as to the question of whether or not the primary judge did have regard, as part of the factual matrix, to the Singapore proceedings and, associated with that, whether there was a need for a notice of contention or not.  As I understand it, it is put by Mr Stoljar that, if granted leave in relation to the first ground, UBS would be wishing to contend that the majority erred in concluding that the primary judge did not have regard to the Singapore proceedings as part of the factual matrix.

MR TYNE:   I understand what your Honour says.  I am saying that that is the point that has been conceded.

BELL J:   You are saying that yes, it is the case, there is a controversy.  Why, Mr Tyne, in the event special leave were granted on the first ground, would one not deal with the third ground because it is bound up with the first?

MR TYNE:   I fear I am not communicating my point very well.  The point I am trying to make is that the actual issue about whether his Honour did or did not have regard to the Singapore proceedings was conceded.

BELL J:   I understand you say that and you say that on the strength of the passages that you have ‑ ‑ ‑

MR TYNE:   Yes, I do, your Honour.

BELL J:   ‑ ‑ ‑ taken us to in the transcript and it may be that there is an issue as to how one reads that passage.

MR TYNE:   I see what your Honour is saying.  You are saying you do not read it as a concession.  Very well, I will move on to the substantive issue.

BELL J:   Yes.

MR TYNE:   All right.  Well, the substantive issue is also encapsulated in some dialogue at page 320 of the application book, and essentially the issue, or the case that was put against us, both at first instance and on appeal, was that paragraph 26 of this Court’s judgment in Tomlinson – so that is paragraph 26 of the plurality, not Justice Nettle – paragraph 26 effectively disengaged the requirement in the Reichel v Magrath type of use, disengaged the requirement for a prior determination, and that paragraph was put together with paragraph 38 of the decision in Tomlinson where the Court talks about an opportunity, the party must have an opportunity to present its case. 

That ultimately resulted in a finding of his Honour Justice Greenwood where his Honour has taken paragraph 26 and paragraph 38 of Tomlinson and conflated them to reach the conclusion, well, it is an abuse of process in circumstances where a party had an opportunity to agitate its claim before a court, it is an abuse of process ipso facto, for that party not to have seized that opportunity and agitated that claim at that time, and that is true notwithstanding that that decision did not proceed to a determination on the merits.

Mr Stoljar has a very narrow definition of “on the merits” in this sense.  But we say, as did Justices Jagot and Farrell, that “on the merits” must mean the actual issue in hand has been heard and determined.  So when we look at the pleadings in the Federal Court, not one issue raised by those pleadings has been heard or determined, let alone determined adversely to the interests of the trust.

BELL J: Put to one side for the moment Mr Stoljar’s narrow characterisation of “determination on the merits” and look at the analysis of Justice Dowsett which, as I read it, did not turn on how one characterises a hearing on the merits but rather on considerations of oppression, section 37M of the Act ‑ ‑ ‑

MR TYNE:   Yes.

BELL J:   ‑ ‑ ‑ and associated with that, not bringing the administration of justice into disrepute by the way one conducts litigation.

MR TYNE:   Yes, I will speak to that then, your Honour.  So the first point to note vis‑à‑vis all of that emerges from paragraph 32 of Justice Dowsett’s reasons for judgment, and your Honour will find that at page 140 of the application book.  I will just read out two sentences of that paragraph, juxtapose them and we can discuss them from there:

However a decision was taken by the Trust, Ms Marks, and/or Mr Tyne not to permit such resolution. 

So that is resolution before Justice Sackar in 2013, and the decision vis‑à‑vis the trust was to discontinue its participation in those proceedings.  I might make the point en passant, as it were, that that discontinuance was consented to by UBS without condition and it was granted without conditions of leave by Justice Ward.

BELL J:   What happened I think was that her Honour gave leave to amend the pleading and the amended pleading named Telesto only.

MR TYNE:   Yes, it did not proceed in the normal course with a notice of discontinuance, but the substantive effect, yes.

BELL J:   Yes.

MR TYNE:   Now, prior to this case, it had never previously been suggested that a plaintiff who had discontinued in those circumstances was ipso facto committing an abuse of process of the second court when he sought to enliven his cause of action.

KEANE J:   Well, it is a little more nuanced than that, is it not?  If one looks at page 167 in paragraph 104 of the joint judgment where their Honours cite the judgment of Justice Palmer ‑ ‑ ‑

MR TYNE:   Sorry, just let me catch up with you, your Honour.

KEANE J:   Sorry, Mr Tyne, page 167, paragraph ‑ ‑ ‑

MR TYNE:   Yes, this is the Ingham Case? 

KEANE J:   This is Running Pigmy Productions v AMP General Insurance.

MR TYNE:   Yes, yes, thank you.  Sorry, your Honour.

KEANE J:   Where their Honours cite the passage which says:

It is not an abuse of process for a plaintiff to discontinue a proceeding merely in order to be able to bring the same proceeding later in circumstances in which the plaintiff believes there will be a greater prospect of success or a more substantial recovery . . . These circumstances may legitimately include the possibility of a subsequent increase in the limit of recoverable damages due to legislative amendment . . . and the enhanced prospect of enforcing a verdict by commencing proceedings in another jurisdiction –

His Honour goes on to include:

the prospect of the plaintiff being able to conduct the second proceedings more effectively than the first by reason of an improvement in the plaintiff’s financial position –

and so forth, or the availability of “expert evidence”.  Those various considerations which are seen to at least be relevant to the question of abuse and discontinuance, is there evidence or was there evidence before their Honours that enabled them to take a similar view of the basis of discontinuance here?

MR TYNE:   No, no evidence and that is the point that UBS took.  But could I direct your Honours’ attention to page 367 of the application book, and paragraphs 4 and 5 of those outline submissions?

BELL J:   Yes.

MR TYNE:   So his Honour Justice Dowsett effectively said well, that is the sort of thing that ought to have been put in an affidavit by way of evidence and mea culpa that is so because I wrote those submissions.  I could have equally given the same affidavit but I did not.  The reason that I did not though is that all of those circumstances that your Honour Justice Keane just identified are instantiations of cases where parties have discontinued but they do not codify the law. 

So there are plenty of other discontinuance cases that are not explained by the motivation of a plaintiff to seek larger damages elsewhere or by his present impecuniosity, and probably the original modern discontinuance case is an example of that.  So that is the Kronprinz and that is the case that is regularly cited for the proposition that a party that discontinues with the unconditional leave of the court has a common law right to reinstitute his cause of action in a subsequent proceeding.

One will see in Jones v Dunkel in the analysis of Justice Windeyer historically where that right emerges from, but to quote Baron Parke he has the right to start over.  So it is a balance between two significant principles:  one, that the law should not compel people to litigate if they do not want to; and two, that people should have access to the courts of justice to ventilate their rights.  Never has it previously been held – and this is why Justice Edelman made the finding that he did, if I can direct your Honours to page 110 of the application book, paragraph 43, Justice Edelman observes that:

UBS pointed to no decision in which a dominant consideration in the finding of an abuse of process was a previous unconditional discontinuance of the same or substantially the same litigation.

BELL J:   What his Honour was concerned to do was to determine whether there was an arguable basis for the grant of leave to appeal from the primary judge’s decision and his Honour concluded in your favour that there was.

MR TYNE:   Yes.  It does not determine the issue.

BELL J:   It is not in contest in this Court that with UBS seeking special leave to ‑ ‑ ‑

MR TYNE:   I understand your Honour’s point, but the cases that I can cite to your Honour off the top of my head in which the circumstances do not fall within those identified in the Running Pigmy Case, include the Kronprinz, Melbourne Money v Bryant, Lower v Comcare. I mean, there are a string of discontinuance cases where the courts have not said, well, it is all fine so long as you can prove you fall within one of these circumstances. That has never been the law. So we say Justice Palmer was just giving instances of motivation to people who had discontinued, but not attempting to restrict the circumstances to those instances. Might I touch on section 37M?

BELL J:   Yes.

MR TYNE: So, section 37M(1)(a) ‑ ‑ ‑

BELL J:   The just resolution of disputes according to law, Mr Tyne.

MR TYNE: According to law, yes. It is the phrase “according to law” that I wish to focus on. So the phrase “according to law” obviously inheres the common law and the law of discontinuance is part of that common law. So we say it would be surprising if section 37M could be read as attenuating longstanding prior common law rights, and we also say it would be surprising if section 37M could operate…..

I understand as a party that the obligation affixes upon me when I bring my case in the Federal Court. I do not think it necessarily follows that that entitles the Federal Court to say we do not really like the way you have proceeded hitherto and therefore bringing this is an abuse of process of this court. I do not see that follows, but the stronger point I think is that I do not imagine that section 37M was really intended to circumscribe the rights of discontinuing parties to reagitate their cause of action.

BELL J:   Yes.

MR TYNE:   I am not sure how much time I have.

BELL J:   The light is on, Mr Tyne.

KEANE J:   The light is yellow, it will be red soon.

MR TYNE:   Does that mean I am in the last five or?

BELL J:   Yes, you are in the last stretch, Mr Tyne.

MR TYNE:   All right, that is all right.  I have enjoyed the discourse.  I will keep going, if I might.  A critical point we say that Justice Dowsett really inferred all of these things, inferred prejudice to UBS, inferred manifest unfairness, et cetera, and the reason for that is there was no evidence of any of those things.  UBS has a movement to strike out or a heavy onus to demonstrate the factors that attract the jurisdiction and all the familiar words, the jurisdiction to be used sparingly and with the utmost caution, et cetera, et cetera, but they put on no evidence as to how they were prejudiced, and in fact the judgment of Justices Jagot and Farrell which were wildly divergent from the approach Justice Dowsett took, Justice Jagot and Farrell said, well, all right, there is no evidence but more to the point we cannot even conceive of a circumstance in which you are in fact prejudiced. 

Everything that you raised and said and the money that you expended and the time and effort that was put towards procuring the permanent stay against Telesto would have been done in a later proceeding in any event.  So that was one path, we say the correct path to take.  The alternative path was the path that Justice Dowsett took which was simply infer all the things, and we say as a matter of greater principle that a movement that has a heavy onus upon it to make its case should not simply be entitled to surf a tide of inference and assumption and conjecture, but should actually be put to the task of actually putting on some evidence.

BELL J:   We have the point and the red light is now on.

MR TYNE:   I see that.  Is that ‑ ‑ ‑

BELL J:   Yes.

MR TYNE:   Yes, thank you.

BELL J:   Unless there is something very pressing, Mr Tyne, I think your time is up.

MR TYNE:   No, your Honour, no.  Thank you.

BELL J:   Yes, very well.  Thank you, Mr Tyne.  Yes, Mr Stoljar.

MR STOLJAR:   Unless your Honours have any questions of me in relation to the matters arising, I do not have any submissions in reply.

BELL J:   Thank you, Mr Stoljar.

There will be a grant of special leave in this matter.  The grant will be confined to grounds 1 and 3, and again, if the parties would collect from the Registry the directions for the filing of submissions.  Just one matter - the likely estimate, Mr Stoljar?

MR STOLJAR:   Half a day.

BELL J:   Half a day. 

MR TYNE:   I have a reputation for being brief, your Honour, so less.

BELL J:   Excellent, half a day it is.  The Court will adjourn to reconstitute.

AT 10.54 AM THE MATTER WAS CONCLUDED