Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority

[2006] HCATrans 437

[2006] HCATrans 437

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S388 of 2005

B e t w e e n -

WALKER CORPORATION PTY LIMITED

Applicant

and

SYDNEY HARBOUR FORESHORE AUTHORITY

Respondent

Summons

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 14 AUGUST 2006, AT 9.31 AM

Copyright in the High Court of Australia

MR I.J. HEMMINGS:   I appear for the applicant.  (instructed by Minter Ellison)

MR J.E. GRIFFITHS, SC:   I appear with my learned friend, MR S.J. FREE, for the respondent.  (instructed by Deacons)

HIS HONOUR:   Yes, Mr Hemmings.

MR HEMMINGS:   Your Honour, we move on an application dated 1 June and I read the affidavit of Helen Macfarlane dated the same date.

HIS HONOUR:   This is the affidavit of the solicitor, is it?

MR HEMMINGS:   That is correct, your Honour.  It is a reasonably lengthy affidavit only because of ‑ ‑ ‑

HIS HONOUR:   Helen Elizabeth Macfarlane?

MR HEMMINGS:   Yes.

HIS HONOUR:   Is there any objection to that, Dr Griffiths?

MR GRIFFITHS:   No objection, your Honour.

HIS HONOUR:   Very well, I read that affidavit.

MR HEMMINGS:   If it please the Court.

HIS HONOUR:   Who is actually the moving party in this matter?  You are the moving party?

MR HEMMINGS:   Yes.

HIS HONOUR:   And you are moving to have, by the summons which is dated 1 June 2006, to have an application for special leave which was filed in 2005 stood over to a date unknown until after the Court of Appeal has dealt with the second matter?

MR HEMMINGS:   Yes, that is correct, your Honour.  There is an application for special leave and we are merely seeking that be adjourned.

HIS HONOUR:   Yes, very well.  Is there any other evidence that you are going to place before the Court?

MR HEMMINGS:   No, your Honour.

HIS HONOUR:   Do you have any evidence?

MR GRIFFITHS:   No, no evidence, your Honour, although we do have annexed to our outline of submissions a copy of the notice of contention which provides the basis for the opposition to Mr Hemmings’ application.

HIS HONOUR:   Yes.  Just let me see if I have that.  Now, that is Mr Hemmings’ notice of contention, is it?

MR GRIFFITHS:   That is correct, your Honour.

HIS HONOUR:   Yes.  Perhaps I will just ask, Dr Griffiths, something that will get something clear in mind.  I want to know whether or not the principle, which I understand to be a principle of law, that in an appeal validly brought you can raise any interlocutory matter that stands relevant to the judgment which is under appeal, would put you out of arguing any matter in this Court in the event that an application for special leave was brought by the present applicant against the orders of the Court of Appeal in the second matter that is now before it?

MR GRIFFITHS:   Probably not, although we would, of course, in the hypothetical that your Honour has just described, still be faced with two special leave applications.

HIS HONOUR:   I realise that.  I may be wrong, but my understanding, and it has arisen out of a lot of cases, is that where you have an appeal and there is a matter that arises out of earlier proceedings well down the track, and especially where cases are separated and separate points are raised, they are always available to you to appeal against in challenging the final judgment.

MR GRIFFITHS:   Yes.

HIS HONOUR:   Now, I think this Court has said that, and certainly I said it many times in the Court of Appeal and it is acted on regularly, that you can save points up, in a sense.

MR GRIFFITHS:   Yes.

HIS HONOUR:   Now, the bottom line in this application is, if there is any risk on Anshun estoppel or anything of that kind that the present applicant will lose a point unless I preserve the first application for special leave, I will protect the first application for special leave. 

MR GRIFFITHS:   Yes.

HIS HONOUR:   If there is no such risk, then there is no need to protect the first application for special leave and any matter that would have arisen under that can come up under that principle in challenging the final order of the Court of Appeal in the second application.

MR GRIFFITHS:   That is the way that we would see it, your Honour, and this is not an attempt – there is a reference in the final paragraph, I believe, of Mr Hemmings’ written submissions that there may be some ambush being placed here to take some estoppel point.  But certainly I can assure the Court it is not my client’s concern or interest.  I can indicate that quite plainly on the transcript.  Rather, the concern is to ensure that there are not too many irons in the fire.

HIS HONOUR:   Quite so, yes, and you tell me that if I here and now terminate the first application for special leave, your client would not, should the present applicant be disappointed by the outcome of the Court of Appeal’s second determination of the matter, raise any objection of a procedural Anshun or other kind to the applicants raising on an application for special leave against the second judgment of the Court of Appeal any outstanding matters that were passed upon by the Court of Appeal in its first judgment?

MR GRIFFITHS:   That is correct, your Honour.  We can give the Court that indication and I can go a step further and say that nor would we take any point about time, being out of time in respect of the first matter.

HIS HONOUR:   Very well, thank you.  That is a very proper approach, if I can say so, of a public authority.  Well, in the light of that, Mr Hemmings?

MR HEMMINGS:   There is not a great deal I would want to trouble your Honour with then.  We were protecting our position and we were simply trying to put off the unnecessary incurring of costs until the appropriate time came if we had to deal with either our special leave or, indeed, the respondent’s special leave application that it may be by that time.  But in light of that indication to the Court, I do not think I need to trouble your Honour.

HIS HONOUR:   The only matter that could cause one to pause is whether there is any cost significance of removing your first application now, because normally if I were to strike out or dismiss that application, it would have to be with costs.  I do not think that would be a reason that would cause me to delay terminating a process in the Court that is really bypassed by what has happened and is ancient history.  If you ultimately win you will get your costs of the ultimate success and in that event I would not think

that to be a consideration that should cause me not to remove this matter from the Court’s list.

MR HEMMINGS:   Yes, your Honour.

HIS HONOUR:   The background of this case is set out in the affidavit of Helen Elizabeth Macfarlane which has been read.  That background includes two judgments of the Court of Appeal of New South Wales.  Following the first judgment, an application for special leave to appeal to this Court was filed.  However, by the order made by the Court of Appeal in its first judgment, the matter was remitted to Justice Talbot in the Land and Environment Court of New South Wales.  His Honour now having determined the remitted matter, a further appeal has been brought to the Court of Appeal.  That appeal will be heard later in 2006.  The question is whether the first application for special leave, still outstanding, should be stood over to a date to be fixed, pending the outcome of the second appeal.  Such a disposition would needlessly clutter up the list of the High Court of Australia. 

It is my understanding that following the second judgment of the Court of Appeal, any matter which was outstanding between the parties in the litigation could be brought to this Court in a second application for special leave that challenged that judgment.  Senior counsel for the respondent very properly indicated that no adverse point would be raised by the respondent, in any application for special leave from the second judgment, whether on grounds of procedure, notice or otherwise, to prevent the present applicant from raising any issue in that second application which was left over from the application for special leave against the first judgment of the Court of Appeal.

In light of that concession, which is accepted by the applicant’s counsel, the proper course is for me to remove the first application for special leave from the list.  There may or may not be another application for special leave.  If it comes, it can include any outstanding matters in challenge against the first judgment of the Court of Appeal of New South Wales which properly arises out of that judgment and the interlocutory orders that were earlier made by the Court of Appeal in the first judgment.

On these grounds the application for special leave before the Court is dismissed as unnecessary and superseded by the later proceedings in the Court of Appeal.  The applicant must pay the respondent’s costs.

AT 9.41 AM THE MATTER WAS CONCLUDED