Westpac Banking Corporation v 789Ten Pty Ltd

[2005] HCATrans 920

[2005] HCATrans 920

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S507 of 2005

B e t w e e n -

WESTPAC BANKING CORPORATION

Applicant

and

789TEN PTY LIMITED

Respondent

Summons for expedition

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 14 NOVEMBER 2005, AT 12.01 PM

Copyright in the High Court of Australia

MR R.C. SCRUBY:   I appear for the applicant, your Honour.  (instructed by Henry Davis York)

MR B.W. RAYMENT, QC:   May it please your Honour, I appear with my learned friend, MS. E. RAPER, for the respondent.  (instructed by Laurence and Laurence)

HIS HONOUR:   Mr Scruby, you move on a summons filed 8 November and three affidavits or Mr Kieran Lawrence John Ryan?

MR SCRUBY:   I think we can confine ourselves to the affidavit sworn 8 November 2000.

HIS HONOUR:   And 9 November.  You do not have any objection to those two affidavits, Mr Rayment?

MR RAYMENT:   No, your Honour.

HIS HONOUR:   I am content to make an order for expedition and other orders, but what precisely is the reason for the delay between 19 September when the Court of Appeal delivered its judgment and 8 November when the summons was filed in relation to expedition?

MR SCRUBY:   The decision of the Court of Appeal did not discharge the orders that were made by Justice Bergin which had the effect of preventing access to the documents.  So after we lost in the Court of Appeal we still had a stay, in effect.  The application to discharge the stay was first made on 20 October 2005 and that is what prompted the present application.

HIS HONOUR:   So on that day there was an application to discharge the stay and on 28 October Justice Einstein did not deal with it but said that it was an appropriate course to apply for expedition?

MR SCRUBY:   Yes.

HIS HONOUR:   Then on 10 November he did not deal with it either but vacated the trial date?

MR SCRUBY:   Yes.

HIS HONOUR:   Right, thank you.  Let me just read out some orders to see if the parties are happy with them:

1.        The application for special leave to appeal filed by the applicant on 14 October 2005 be expedited.

2.        The application be fixed for hearing in Melbourne on 16 December 2005. 

I should just interrupt to say it is not possible to have it put in Sydney on Friday, nor in Canberra on the 16th, so that is the only other possibility. 

3.        That the respondent file and serve its summary of argument on or before 16 November 2005.

Mr Rayment, is that possible?

MR RAYMENT:   Yes, your Honour.

HIS HONOUR:   

4.        That the applicant file and serve any summary of argument in reply on or before 18 November 2005.

5.        That the parties attend on the Registrar at 2.30 pm on 21 November 2005 for the purpose of settling the index.

6.        That the applicant file and serve the application books pursuant to rule 41.9.11 on or before 25 November 2005.

7.        That the cost of the summons be costs in the special leave application. 

Any problem with those orders?

MR SCRUBY:   No, your Honour.

HIS HONOUR:   Mr Rayment?

MR RAYMENT:   No, I think not, your Honour.  The interest of my clients is as follows.  In the event that special leave is granted, we were rather hoping that the appeal might be able to be heard before our trial, which is 26 June.

HIS HONOUR:   Yes.

MR RAYMENT:   It sounds like, with that timetable, that possibility still exists.

HIS HONOUR:   Yes, I think the thing to do is, if special leave is granted – and I do not want to say anything about the merits of it, but there are real problems, Mr Scruby, in an interlocutory appeal of this kind – but if special leave were granted, then I think it would be a good idea for one or both parties to make a noise about it in Melbourne on Friday the 16th because then, whether or not a formal expedition order is made, it will be possible for it to be fitted in before the trial begins in June next year and your position accommodated, Mr Rayment.

MR RAYMENT:   Yes, thank you very much, your Honour.

HIS HONOUR:   Mr Scruby, you do not ask for any extension of the stay?

MR SCRUBY:   Not yet.

HIS HONOUR:   You are operating on the theory that if this expedition order is made, nothing much will happen before 16 December, and if special leave is granted on the 16th nothing much will happen either?  Very well.

It is not necessary, I think, to explain the background circumstances.  Despite a delay between 19 September 2005 when the Court of Appeal dismissed an appeal from Justice Bergin’s orders of which the applicant is complaining and 8 November 2005 when the summons for expedition was filed, expedition should be ordered because if it were not ordered it would tend to make the application for special leave and any appeal that flows from it nugatory.  I will make the orders I read out to the parties a short time ago:

1.        The application for special leave to appeal filed by the applicant on 14 October 2005 be expedited.

2.        The application be fixed for hearing in Melbourne on 16 December 2005.

3.        The respondent to file and serve its summary of argument on or before 16 November 2005.

4.        The applicant to file and serve any summary of argument in reply on or before 18 November 2005.

5.        The parties are to attend on the Registrar at 2.30 pm on 21 November 2005 for the purpose of settling the index.

6.        The applicant to file and serve the application books pursuant to rule 41.09.11 on or before 25 November 2005.

7.        The cost of the summons be costs in the special leave application.

Anything further need to be done?  Thank you very much, gentlemen.  The Court will adjourn.

AT 12.07 PM THE MATTER WAS CONCLUDED