Wakim Ex parte McNally and Ors

[1998] HCATrans 392

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S74 of 1998

RE THE JUDGES OF THE FEDERAL COURT OF AUSTRALIA

First Respondents

GEORGE WAKIM

Second Respondent

Ex parte –

PETER J. McNALLY and TERENCE McNALLY

Prosecutors

Office of the Registry
  Sydney  No S107 of 1998

RE THE JUDGES OF THE FEDERAL COURT OF AUSTRALIA

First Respondents

GEORGE WAKIM

Second Respondent

Ex parte –

CHOLMONDELEY DARVALL QC

Prosecutor

Office of the Registry
  Sydney  No S118 of 1998

In the matter of –

Applications for Writs of Prohibition and Certiorari against SUSAN AGNEW, formerly a Registrar of the Federal Court of Australia

First Respondent

THE HONOURABLE BRIAN JOHN MICHAEL TAMBERLIN, A Judge of the Federal Court of Australia

Second Respondent

THE JUDGES AND REGISTRARS OF THE FEDERAL COURT OF AUSTRALIA

Third Respondents

MARTIN RUSSELL BROWN, Liquidator of Amann Aviation Pty Limited and AMANN AVIATION PTY LIMITED (IN LIQUIDATION) and BP AUSTRALIA LTD

Fourth Respondents

ROBERT OTTO AMANN & VANDA RUSSELL GOULD

Prosecutors/Applicants

Office of the Registry
  Sydney  No S 140 of 1998

B e t w e e n –

JOHN SPINKS, TRAVERS DUNCAN, ALLAN WELLS, GEOFFREY WHITE, WHITE CONSTRUCTIONS PTY LIMITED, WHITE INDUSTRIES AUSTRALIA LIMITED, WHITE INDUSTRIES PTY LIMITED, WHITE CONSTRUCTIONS PTY LIMITED, PDC CONSTRUCTIONS PTY LIMITED, PDC PLANT HIRE PTY LIMITED, WIL CIVIL AND MINING ENGINEERING PTY LIMITED, WHITE CONSTRUCTIONS PTY LIMITED, EXXON COAL AUSTRALIA LIMITED

Applicant

MAXWELL WILLIAM PRENTICE

Respondent

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 9 NOVEMBER 1998, AT 9.00 AM

Copyright in the High Court of Australia

HER HONOUR:   The appearances are probably as in the list, are they?

MR JACKSON:   Yes, your Honour.

HER HONOUR:   Yes, well, I will not bother further, they can be taken as such.  The matter is in the list today, really, to make sure that these three matters can be heard together and, if so, to make a timetable for the filing of written submissions so that everything is in at an appropriate time, and to ensure that you are agreed about the times that you will each have for oral argument.  So, is the first matter agreed?

MR JACKSON:   Your Honour, the position – I cannot really say it is agreed – I think it is agreed but it is subject to some qualifications.  May I just say this:  first of all, as we understand the position, the matters are set down, at least tentatively, for the 1 and 2 December.  I have to say, your Honour, with the number of matters involved, that does, with respect, seem a little short.  While some members of the Court will, in a sense, have heard all of, or most of it, before, some have not.

HER HONOUR:   It is not within my power to give you an extra day in the December sittings.

MR JACKSON:   Well, your Honour, I have to say, I think, our cases – by that, I mean the two I am in – could be dealt with in two days, but there are additional issues in the other case and may I just say, with respect, that I think another half a day would be appropriate if the three matters are to be dealt with together, or the four matters are to be dealt with together.  Subject to that, your Honour, we would suggest that the time available be divided equally between, in effect, the proponents of validity and the proponents of invalidity - that is a course that worked in the section 90 cases heard last year - and leave it to the parties or either side to work it out.  We would be happy to do that and that is the course that we would propose.

Your Honour, so far as submissions are concerned, if your Honour wants me to go on to that now, so far as the submissions on behalf of our sides are concerned, a time that has been proposed, I understand, is Friday, 20 November.  Mmay I just suggest, your Honour, that if we could ask that it be made the 23 November, the following Monday.  It simply allows the weekend to do a job or, perhaps, a better job.

HER HONOUR:   Yes, I do not see any difficulty with that.  What about submissions by the – I will call them the respondents at this stage?  They are all respondents are they - no, perhaps, not.  When could their submissions be in by?

MR COOK:   Thank you, your Honour.  If the applicants in the first two matters seek to extend the time, based on this tentative timetable that was sent by the Registry for the submissions, and they seek to enjoy the benefit of the weekend, perhaps the submissions on behalf of the respondent in both the Wakim matters could also be put back, perhaps, two to three days.

HER HONOUR:   When would ‑ ‑ ‑

MR COOK:   The tentative timetable provided for the applicants to have their submissions by 20 November and the respondents by the 25th. 

HER HONOUR:   Twenty-seventh?

MR COOK:   Yes, your Honour.

HER HONOUR:   And could anything in reply go with on the following Monday afternoon?  Would that be convenient?

MR JACKSON:   Yes, your Honour.

HER HONOUR:   Now, gentlemen, the timing is, of course, difficult.  What about the interveners, I am sorry, perhaps, I should find out, what about intervener’s submissions?

MR ROBERTSON:   I am for a party, your Honour.  The interveners are down that end.

MR BURMESTER:   Your Honour, from our perspective we think it would be most unfortunate if all these matters were to be heard in just two days.

HER HONOUR:   Well, do you want them split?

MR BURMESTER:   Well, that would be one possibility, your Honour, that perhaps the Spinks matter be put over until February or later some time next year.  It does raise some separate issues but in the other matters, they are not ‑ ‑ ‑

HER HONOUR:   When can you get your submissions in, anyway, Mr Burmester?

MR BURMESTER:    Your Honour, we would be happy to get ours in, I think, on the 27th, the same time as the other respondents if that is the timetable.

HER HONOUR:   Yes.  Is that suitable to the other interveners, Mr Selway?

MR SELWAY:   Yes, your Honour.  Could I perhaps say one thing on the timing?  All of the States, except Tasmania, which will join with one other – I do not know that it is decided which other yet but, nevertheless, will join with one other – would be looking to make submissions and in the best of all possible worlds would be looking for about half an hour each.  The Territories:  the Northern Territory, if the Spinks matter was heard with the others, would be looking to take, perhaps, half an hour on the territories power, similarly, the ACT.  If those matters were not heard with the others, the Territory might be looking for five minutes.  That, by itself, may be some reason to consider whether the territories power should be heard together.  I accept the apparent fairness of Mr Jackson’s suggestion that each side where they take half the time ‑ ‑ ‑

HER HONOUR:   Well, can you get your submissions in by the 27th?

MR SELWAY:   Yes, your Honour, that can be done.

HER HONOUR:   And all the prosecutors, I will call them for the moment, could get their replies in by the afternoon of the 30 November, could they, yes?  Now, the only problem is the time.  Well, now, if your written submissions are comprehensive, you really should not need all that much – you should not need more than two days, should you?

MR BURMESTER:    Your Honour, I would strongly suggest that there is a need for a longer time ‑ ‑ ‑

HER HONOUR:   The matter has been rehearsed once before.

MR BURMESTER:    Your Honour, but as Mr Jackson said, there are some Judges who have not heard the matters.  The cases also are not just straightforward issues as I understand them, of the validity of the cross‑vesting schemes.  In the Wakim matter, there is the possibility of accrued jurisdiction being argued.  In the Amann matter, there is the issue of estoppel and possible abuse of process.

HER HONOUR:   Yes.  Well, certainly could those issues stand separately, the accrued jurisdiction and the estoppel?

MR BURMESTER:    Well, your Honour, in terms of stand separately, we certainly would not want them argued separately from the cross-vesting aspects of those two cases because it does seem they are integral to whether

the Court has to actually deal with the cross-vesting issue.  So, we would not wish to see those issues, as it were, left for another day.  We are, however, prepared to see the separate Spinks matter left for another day.

HER HONOUR:   Well, you are just an intervener, Mr Burmester, so ‑ ‑ ‑

MR BURMESTER:    Yes, your Honour, an intervener who is likely to carry a considerable load of the argument.

HER HONOUR:   Well, I do not know about that.

MR ROBERTSON:   May I be heard as a partner to the party, your Honour?

HER HONOUR:   Yes.

MR ROBERTSON:   In a third of the matters in your Honour’s list, I appear with Mr Jones for the fourth respondents.  We had intended that the bulk of our argument, not duplicating the argument that already have gone before on the validity point, but the bulk of our argument, would be on the question of remedies.  Your Honour may recall that what is sought, amongst other things, besides the finding conclusion on the constitutional point, are orders setting aside orders made some six years ago, or three years ago, and we will have a lot to say about those points separate from any question of constitutional validity or invalidity.  We expect and hope to be able to adopt, for the most part, what the parties in the earlier case and the interveners have said in the earlier case about invalidity or validity, but we would hope that we would have a couple of hours to deal with those quite separate, but important, issues.

Now, the question that Mr Burmester has just raised, and I think your Honour raised it with Mr Burmester, was that whether or not it would be sensible in that case for the particular questions, which I have just adverted to, and the abuse of process questions, to be dealt with later.  We would have thought it might be preferable to deal with the whole of the case together, but we do not ‑ ‑ ‑

HER HONOUR:   Well, I can tell you now that if you are dealing with it altogether there are two days.  I can tell you that now.  There are two days.  There are other parties with important litigation to be dealt with by this Court and, as I said, this matter has been rehearsed once.  The range of the arguments have been canvassed comprehensively once already.  The core issues really should not take terribly long, should they?

MR ROBERTSON:   No, what I am talking about is the others ‑ ‑ ‑

HER HONOUR:   And there is no good reason why a lot of the material cannot be put in writing and if need be – well, what I will call subsidiary questions such as the remedies and the issues that arise – I think it is in Brown and Amann dealt with later.  They may never arise.

MR ROBERTSON:   Yes, well, your Honour, there really seem to be two choices with the Brown and Amann which is the matter that I am talking about, either that it all go over to next year or ‑ ‑ ‑

HER HONOUR:   No, that is not a choice.

MR ROBERTSON:   Or ‑ ‑ ‑

HER HONOUR:   I am sorry, that is not a choice.

MR ROBERTSON:   Or that the particular questions about remedies go over?

HER HONOUR:   Well, that is a possibility.

MR ROBERTSON:   Yes, so ‑ ‑ ‑

HER HONOUR:   But why?  I really do fail to see why, with proper written submissions, it cannot be dealt with in two days.

MR ROBERTSON:   Well, your Honour, if I might say, lastly, in relation to written submissions, I know Mr Jackson has said what he said about the weekend of 21 and 22 November, but we would ask that the original timetable be adhered to, at least so far as the third matter is concerned.

HER HONOUR:   Well, there never was an original timetable, it was just something that arose in discussion between counsel with the Registry.

MR ROBERTSON:   Well, as your Honour pleases, but, nevertheless, we would ask - whatever the status of those dates, we would ask that the submissions on behalf of Amann and Gould be supplied to us by the 20th, which is the Friday, which would allow us, therefore, that weekend and the following week for our submissions, otherwise we will get them on the Monday and we have to file ours by the Friday, so we would prefer, if that is convenient to our friends on the other side, for – in that matter – the submissions to be made available on Friday, 20th, your Honour.

HER HONOUR:   Is that possible in that one matter, Mr Rares.

MR RARES:   It is certainly possible, your Honour.  We would prefer to have, say, until early on the 23rd, but it is certainly possible.

HER HONOUR:   Well, at least if we get the written submissions, we have a chance of dealing with the matters in two days with perhaps slightly extended sitting times.

MR COOK:   Can I just…..perhaps not the Wakim matter so far as discrete matters to Wakim alone.  Senior Counsel envisages only needing an hour or perhaps slightly less, so we would largely intend, sight unseen at this moment, to adopt what the Commonwealth is likely to say in the matter.

HER HONOUR:   Well, it is a brave counsel that does that.  Well, Mr Rares, in your case I will ask that you put your written submissions in by 20 November but the other moving parties – it may be the easiest way – can have until the 23rd.  The respondents – to use that term to cover the other side – in by the 27th, replies to be faxed to the Registry by 4pm on Monday, the 30th, any written – but at the moment I see no reason why it should not stand in the list, all three matters to be listed together for two days.  I see Mr Douglas has got something to say.

MR DOUGLAS:   I am Senior Counsel in the matter of Spinks v Prentice for the applicant.

HER HONOUR:   Yes.

MR DOUGLAS:   We have already filed our submissions and there is a direction that the respondent’s summary of argument should be filed and served by 4pm on Wednesday, 18 November 1988, and that was ‑ ‑ ‑

HER HONOUR:   That was a Registry direction because you are a special leave application, yes.

MR DOUGLAS:   No, I think it was in actual fact for the hearing itself.  I might be wrong about that.

HER HONOUR:   No, I think you have got a Registry direction because you are still a special leave application, are you not?

MR DOUGLAS:   I know that, but we would see no reason, bearing in mind that we have already delivered our submissions, why that time should not be retained.  There is one other procedural matter which ‑ ‑ ‑

HER HONOUR:   Well, I will not overrule the special directions.  Mr Grieve, you have got directions already, have you, in this matter?

MR GRIEVE   Well, yes.

HER HONOUR:   And you have got to have yours in by the 18th.

MR GRIEVE    The 18th.

HER HONOUR:   That is in accordance with ‑ ‑ ‑

MR GRIEVE    They are well under way, indeed we will have not completed today, I expect.

HER HONOUR:   Yes.  Well, you have got your special leave timetable, so, you do not seem to be a problem.

MR GRIEVE    No.

HER HONOUR:   No.

MR DOUGLAS:   We would be opposed to any suggestion that our matter be hived off.  It seems to us there is a fundamental interrelationship between our case and theirs, even though a different issue is involved and it would seem to us that we would be under a disadvantage if, in fact, our argument were to come at some subsequent stage and were not to be heard during the two days set aside. 

The third matter we would wish to raise is this, that we may at some stage, if we cannot reach agreement with the other side, which we have not at this point of time, need to apply for a stay in respect of the inspection of documents prior to the hearing intended to take place on 2 and 3 December.  If I could just foreshadow that at this stage, without actually seeking any special directions in relation to it?

HER HONOUR:   Yes.  Well, presumably, you could reach some agreement about that, could you not?

MR GRIEVE    Maybe.

HER HONOUR:   Yes.  There would be no difficulty about starting this matter at 10 o’clock on each of the two days, would there, or slightly longer sitting hours, would there?  Well, is it sufficient to say that the moving parties should have the whole of the first day, whatever that is?

MR JACKSON:   There is only one difficulty, your Honour, and that is in relation to replies and it is ‑ ‑ ‑

HER HONOUR:   Could replies tentatively be left to be put in in writing or ‑ ‑ ‑

MR JACKSON:   That would be longer.  Your Honour, I had envisaged in saying a day, saying divide the time down the middle and that would include time for replies on our side, for example, so that one would expect the case for the applicants, the prosecutors, to be over – in-chief to be over before the end of the first day.

HER HONOUR:   Yes.  Well, would you need more than an hour in reply?

MR JACKSON:   That is what….hour, your Honour, yes.

MR DOUGLAS:   Could I just raise one matter, because one matter we have not dwelt upon is how one divides up the time between applicant’s counsel.  Obviously, Mr Jackson, I think is going first and we would be quite happy that he has a slightly longer period of time because he would have to elaborate the argument and those who come behind would then have to develop their own special arguments, but we would wish to have some time, if I can put it that way.

HER HONOUR:   Yes.

MR JACKSON:   Your Honour, I am happy to let my learned friend have his 20 minutes, according to law.

HER HONOUR:   Yes, well, I am sure you could work that out between yourselves.  Well, at this stage it will be listed for 10 am on Tuesday, the 1st.  There may be slightly longer sitting hours.  If the moving parties could aim to finish their submissions in-chief by, say, 3.30 on that day, and if the other parties aim to finish, similarly, by 3.30 on the Wednesday and if need be we will sit until 4.30 to hear replies.

MR RARES:   Your Honour, I should also foreshadow that we may need to ask for a stay of the examination orders in Amann, Gould and Brown and as well that we ‑ ‑ ‑

HER HONOUR:   Have you sought an adjournment?

MR RARES:   There was an adjournment sought and some of the examinations have been held.  They are anticipated to go on after the end of this year and it may be that we need to apply for that but it may be that some of them can be sorted out between the parties.

HER HONOUR:   Yes.  If there are any other matters to be raised of that nature they will have to be dealt with in the week commencing the 24th, I think, if they are to be dealt with in Sydney.  Is that sufficient time?

MR RARES:   Yes, your Honour.

HER HONOUR:   If there are any of those matters, you should just file your summons, and it will be listed before me one day in the week commencing the 24th at 9.00 o’clock.

MR RARES:   If your Honour pleases.

MR ROBERTSON:   Your Honour, could I just follow on from what Mr Rares has said.  In terms of the timetabling, we would be proposing to file an affidavit in the Amann proceedings by the end of this week, setting out all the matters that we rely on in terms of why remedies should be refused.

HER HONOUR:   Yes, you have a ‑ ‑ ‑

MR ROBERTSON:   The last time it was done by way of a statement of agreed facts, just setting when the winding up orders were made, what the liquidator has done in the meantime.  So we do not anticipate it to be controversial, but if I can indicate to the Court and to my learned friends that we propose to do that by this coming Friday.

HER HONOUR:   Do the 78B notices raise a further constitutional question with respect to Amann

MR ROBERTSON:   They do, and they ‑ ‑ ‑

HER HONOUR:   So there is no trouble about those notices?

MR ROBERTSON:   It raises the general question, if I could call it that, and then it raises a separate question about whether, as it is described, issue estoppel has anything to do with the question of constitutional validity, so that is one of the things, obviously, that we will have to deal with, and that is one of the things the affidavit will be relevant to, your Honour.

HER HONOUR:   Yes.  Well, there will not be any difficulty about that, will there, Mr Jackson?  You have ‑ ‑ ‑

MR RARES:   It will affect me, your Honour.

HER HONOUR: Sorry, Mr Rares. 

MR RARES:   No, your Honour.

HER HONOUR: No, very well.  Is there anything else that Mr Burmester ‑ ‑ ‑

MR BURMESTER:   Your Honour, if all the matters are to proceed and be heard on the two days, can we have some dispensation from the length of the written submissions ‑ ‑ ‑

HER HONOUR:   Oh, yes.

MR BURMESTER:    Twenty pages probably would not suffice, given that we will be looking, I think, to put in a consolidated set of submissions.

HER HONOUR:   Yes, there is no difficulty about that.

MR DOUGLAS:   Your Honour, contrary to my previous indication, bearing in mind it is only the week of the 24th which is available, could we have a time on the morning the 24th, that is for Monday, I think?

HER HONOUR:   Yes, you have not filed any documentation.

MR DOUGLAS:   We have not at this stage, your Honour, because ‑ ‑ ‑

HER HONOUR:   I will tentatively list it for 9.00 o’clock on the 24th.

MR DOUGLAS:   That is the Monday, I think.

HER HONOUR:   Yes, if you have your documentation in.

MR DOUGLAS:   If it please the Court ‑ ‑ ‑

HER HONOUR:   But if it does not come in, it will not be listed.

MR DOUGLAS:   I understand that, your Honour.

HER HONOUR:   Yes.  Is that all right?  Monday the 23rd, sorry.  Is Monday better?  Sorry, it is Monday the 23rd.

MR SELWAY:   Your Honour, one matter, so that I can report back:  in the respect of the Spinks matter with the earlier dates, is the date for the Territories, in particular, if they are intervening in that matter, are they also to put their submissions in on the 18 November, or ‑ ‑ ‑

HER HONOUR:   No,the interveners, I think, could conveniently do it all.

MR SELWAY:   On the 27th.

HER HONOUR:   On the 27th, and if there is any further material needed to be put in reply, I am sure that can be dealt with ‑ ‑ ‑

MR SELWAY:   If it please, your Honour.

HER HONOUR:   - - - on the Monday  as with everybody else, yes.  Any other problems?  We will adjourn it now.

MR JACKSON:   Would you certify for counsel, please.

HER HONOUR:   Yes, of course.I will certify that this an appropriate matter for the attendance of counsel in chambers and adjourn these proceedings, and the matter, as I said, will be listed at 10 o’clock on Tuesday, 1 December.

AT 9.25 THE MATTER WAS ADJOURNED