Veta Ltd & Anor v Evans

[2003] HCATrans 720

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S245 of 2001

B e t w e e n -

VETA LIMITED (A COMPANY INCORPORATED IN HONG KONG)

First Plaintiff

CATHAY PACIFIC AIRWAYS LIMITED

Second Plaintiff

and

MARK ANDREW EVANS

First Defendant

DAVID MICHAEL HONNER

Second Defendant

BRETT KENNETH ROSEWALL

Third Defendant

DAVID BRUCE SPRONG

Fourth Defendant

CHARLES BRUCE BURTON

Fifth Defendant

Summonses

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 23 MAY 2003, AT 9.32 AM

(Continued from 12/5/03)

Copyright in the High Court of Australia

__________________

MR R.J. ELLICOTT, QC:   I appear with MR G.J. HATCHER, SC, for the plaintiffs in the action and the applicants in the summons.  (instructed by Freehills)

MR R.C. KENZIE, QC:   Your Honour, I appear with MR S.E.J. PRINCE for the defendants in the action, and we also have a summons.  (instructed by Abbott Tout)

MR J.G. RENWICK:   I appear for the Attorney‑General for New South Wales, who intervenes.  (instructed by Crown Solicitor for the State of New South Wales)

HIS HONOUR:   Yes, Mr Ellicott.

MR ELLICOTT:   Your Honour, I can report to your Honour that my friends have given us a document which sets out facts that they want us to admit.  We received that a couple of days ago.

HIS HONOUR:   Yes.

MR ELLICOTT:   It does contain – and perhaps in a moment I can hand up a copy just to indicate to your Honour – in effect, a request for information, information that

we would have and they would not have.  That would be something they would say we were entitled to on discovery, et cetera.  Having had a conference last evening and having had that explained to us, but with little time to talk with the client, we regard them as matters that we think can be the subject of ultimate agreement.  So would your Honour like to see the document so your Honour will see where we are going?

HIS HONOUR:   Yes.

MR KENZIE:   I will make the document available to your Honour.

HIS HONOUR:   Yes.

MR ELLICOTT:   Your Honour sees those matters at the end there that ‑ ‑ ‑

HIS HONOUR:   Yes, I do.

MR ELLICOTT:   I do not think – when I read it at first, I thought, “Well, this is an exercise”, but when it has been explained to us by our friends, I do not think he wants the Law Commission detail that it might have suggested, nor would the Court.

HIS HONOUR:   My reaction when I read paragraph 5 was the same as yours, Mr Ellicott.

MR ELLICOTT:   Yes, your Honour.  I think we can cope with it in a sensible way but, as I say, the contact with the client has been limited but I do not myself, with what instructions I have got, think that they are matters that we cannot sensibly agree to.  Relevance obviously is another matter, but the Court is going to sort that out.

HIS HONOUR:   Yes.  Anything further, Mr Ellicott?

MR ELLICOTT:   No, your Honour.  It is just a question of adjourning it.

HIS HONOUR:   Yes, Mr Kenzie.

MR KENZIE:   Your Honour, there is nothing further.  We have had the benefit of a useful discussion with our learned friends in relation to the matters in 5 which we conceded to them and concede to the Court are cast broadly but would have to be approached by the parties sensibly and obviously relate to the contention that we would ultimately make that the plaintiffs in this case are involved in an arrangement, if not a contract, which relates to and is in and of New South Wales. 

We accept that those matters would have to be addressed sensibly and it is not a Royal Commission or a fishing exercise but just an attempt to get to grips with matters which would be sufficient, we hope, to allow the Court, if it comes to that, to come to grips with the question of whether this is in and of New South Wales and relates to an industry or part of an industry in New South Wales, your Honour.

HIS HONOUR:   Yes.  I am going to need some argument, I think, as to whether it is a proper matter for a stated case and as to whether or not these associated matters are really associated matters within the meaning of section 32 of the Judiciary Act.

MR KENZIE:   Yes, your Honour.  Your Honour will understand our ultimate submission here.  We are attempting to co‑operate with the other side to put this matter in its proper form so that a debate can be had.

HIS HONOUR:   Yes.

MR KENZIE:   But our ultimate submission – your Honour has the written submission.  Because of the very nature and breadth of the case, one has these difficulties and we are trying to be co‑operative but, at the end of the day, there will have to be addressed the question of whether you can usefully have a debate about whether something is in and of New South Wales in relation to a proceeding which asks the question, “Is there an arrangement between a number of parties that is in and of New South Wales by this means rather than by trial?”

HIS HONOUR:   How long do the parties need to get the material together which will ground this debate?

MR KENZIE:   We have put to the other side all of the matters that we can usefully put, so that the question that your Honour sent us away with last week has been answered.  We require no more time other than the time that would be needed to crystallise this additional material into the draft stated case.

HIS HONOUR:   Yes, I suppose Mr Ellicott’s clients have got other problems in Hong Kong ‑ ‑ ‑

MR KENZIE:   Yes, your Honour, they do.  We understand that, your Honour.  I think it is a matter for my friend – your Honour said June as a time when your Honour wanted to resolve this matter.  We have nothing to add.

HIS HONOUR:   I suppose since I started with it, I will have to stick with it to the bitter end, but I will be away in July and August.  It concerns me ‑ ‑ ‑

MR KENZIE:   Your Honour, it really is a matter for my friend and we require no more time because we have no more information which we can relevantly bring to bear.

MR ELLICOTT:   Your Honour, could I suggest this, that we put it in the list just before your Honour goes and if we are agreed by then, fine.  I can see some possible time problems with the client.  If by the time your Honour is going away we still have some problems, it can come back in September.

HIS HONOUR:   That would mean the whole question of remitter argument or stated case would be – we are talking about September, yes.

MR ELLICOTT:   In September, yes.

HIS HONOUR:   What do you say about that?

MR KENZIE:   Your Honour, we think that really is too long having regard to the history of these proceedings and the work that has been done.  We would ask your Honour to adhere to the original intention, namely to bring this matter back late in June and by which time there can be a reasoned debate as to whether this matter ought to be remitted or not, in our respectful submission.

HIS HONOUR:   Yes.  If necessary, I can postpone what I was going to do, even if it is in early July.

MR ELLICOTT:   Around about 30 June, is that a sensible date, your Honour?

HIS HONOUR:   What about 16 June?  That is three weeks, Mr Ellicott.  Where do you see the issues at the moment in terms of these additional facts?  Is it only the paragraph 5 that will be in dispute or need to be clarified, or is it everything in this document?

MR ELLICOTT:   I think everything has to be checked and there will be some debate, I think, from what we have already, but it is not serious debate.  It is a matter of just exposing the facts.

HIS HONOUR:   Well, a famous journalist once said he would never get anything written unless he had a deadline and it may be that if I put this

matter in for mention on 16 June because I would like, if possible, to have a hearing somewhere around 30 June or early July.

MR ELLICOTT:   If your Honour pleases.  Well, that is fine.  That is, if I may say so, a sensible course.  We will know by then whether we have any real difficulties with facts or issues.

HIS HONOUR:   Yes.  So it can be put in for mention again at 9.30 am on 16 June.

MR KENZIE:   That is suitable, your Honour.

HIS HONOUR:   Yes.  I will adjourn this matter until 9.30 am on 16 June.

AT 9.43 AM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 16 JUNE 2003