MURPHY: We are saying that for this reason we have put on all that is available at the present time. We have done that but the authorities also caution against an assumption that is all there is. We are not having an each way bet at all. It is an orthodox approach to litigation. The test is very high. There is no basis for a finding that there is a jurisdictional connection and they fail to do that on the evidence before your Honour.
13 Mr Murphy then proceeded to make oral submissions seeking to establish a territorial nexus by reference to a number of contracts and arrangements to which he referred.
14 However, having regard to the applicant's primary position as put by Mr Murphy, namely that this was not an appropriate stage of the proceedings to determine this issue, because all of the relevant evidence had not been adduced on behalf of the applicant, I have grave concerns that pursuing any submissions as to jurisdiction to finality at this stage would be inappropriate.
15 There is specific reference in the observations in the joint judgment in Agar v Hyde to a party not being denied the opportunity to place his or her case before the court "in the ordinary way" and, more importantly, "after taking advantage of the usual interlocutory processes."
16 It was submitted by the respondents that the Court should not have regard to these observations in the High Court of Australia in Agar v Hyde and in Batistatos. This was because, firstly, Agar v Hyde involved consideration of what was, as the submission said: "Absence of a triable issue" and, in the case of Batistatos, proceedings involving a consideration of whether or not delay had created an abuse of process.
17 I respectfully disagree. My understanding of the statements of principle in both cases is that they apply in the circumstances of these proceedings, namely a determination about whether or not the applicant's case is untenable, futile or otherwise to be denied because there is "a high degree of certainty about the ultimate outcome of the proceedings if it were allowed to go to trial in the ordinary way."
18 In order to remove any doubt in this regard, I set out below [44] to [46] of the joint judgment of Gleeson CJ, Gummow, Hayne and Crennan JJ in Batistatos.
"44. In his reasons, Hoeben J identified, under the heading "Absence of triable issue", the first submission of the defendants. This was that the claim by the plaintiff "was so obviously untenable that it could not succeed" [2004] NSWSC 796 (at [14]). The submission was framed in terms which appeared to state as a principle remarks made by Barwick CJ in a passage in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 (at 130). Barwick CJ pointed out that, on the one hand, great care was to be exercised to ensure that a plaintiff was not improperly deprived of the opportunity for the trial of the case "under the guise of achieving expeditious finality", and, on the other, the summary intervention of the court was not reserved for cases where "argument is unnecessary to evoke the futility of the plaintiff's claim". His Honour then immediately continued (1964) 112 CLR 125 (at 130.)
"Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed."
45. The conclusion in General Steel was that Barwick CJ was satisfied that the statement of claim did not disclose a reasonable cause of action so that this Court was authorised by O 26 r 18 of the then High Court Rules to strike out that pleading ((1964) 112 CLR 125 at 137). To reach that conclusion, extensive argument was considered respecting the construction and application of the Crown use provisions of the Patents Act 1952 (Cth).
46. The statements in General Steel should not be given canonical force. More recently, in Agar v Hyde (2000) 201 CLR 552 (at 575-576) [57], Gaudron, McHugh, Gummow and Hayne JJ observed:
"It is, of course, well accepted that a court whose jurisdiction is regularly invoked in respect of a local defendant (most often by service of process on that defendant within the geographic limitations of the court's jurisdiction) should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways ( Dey v Victorian Railways Commissioners (1949) 78 CLR 62 (at 91 per Dixon J); General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 (at 130 per Barwick CJ)) but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.""
19 However, it is not just the statement of principle in Batistatos or, more accurately Agar v Hyde that is of concern. It is the admonition contained in Nagle v Tilburg that I have previously set out. That is, this interlocutory application should only be considered at an "appropriate" stage of the proceedings. That is, the Court must be seized of those facts necessary to enable it to determine what the contract or arrangement is or, to use the words in the joint judgment in Nagle, "the parameters of the contract or arrangement". Those facts must be established either by evidence or "plainly agreed in terms".
20 The respondents suggested that the Court should adopt the same approach as was utilised by the New South Wales Court of Appeal in cases involving the exercise of its supervisory jurisdiction over this Court. The respondents cited, for example, the decision of that Court in Yim and Kim v Industrial Relations Commission of New South Wales and Choi [2007] NSWCA 77. In those proceedings, the Court of Appeal determined that there was no contract whereby a person performed work in an industry that could be the subject of relief under s 106 of the Act. However, as appears from [6] of the judgment of Spigelman CJ (in whose judgment Mason P and Handley AJA agreed), those proceedings had been conducted on the basis that there was agreement that all of the necessary evidentiary material to establish all the necessary facts were before the Court to determine whether there was jurisdiction and power under s 106.
21 The situation is somewhat different in the context of these proceedings. As they commenced, and during the course of a number of days of hearing including the taking of oral evidence, both the Court and the respondents understood that the relevant basis was that all of the evidence adduced would be taken at its highest in favour of the applicant and that the proceedings would be determined on this basis. It was not until the dying stages that the applicant recanted, indicating that she wished to pursue further evidence by way of discovery and the issue of summonses for production. Whether and to what extent the applicant has some particular evidentiary material in mind has not been revealed. However, the course of the proceedings, including the cross-examination by Mr Murphy of the respondents' witness would not appear to give any clue as to the nature of any such documentation.
22 The choice which confronts the Court is either to dismiss the motion because this is not an appropriate stage of the proceedings, adjourn the motion to be restored at some appropriate time in the proceedings, to determine the motion on the original basis as agreed by the applicant, or to stand the motion over to allow the applicant to pursue these two further lines of enquiry.
23 In view of the agreed basis upon which these interlocutory proceedings were conducted over several days and the time and costs involved in that process and because the applicant has changed her mind at the last moment, it would not appear to me to be in the interests of the "just, quick and cheap resolution" of this interlocutory application to unduly defer a determination of what the respondents contend is a real issue in the proceedings.
24 Given the history of the matter, I propose to stand over the final determination of these interlocutory proceedings to allow the applicant an opportunity to pursue the two further processes indicated, namely the issue of summonses for production and discovery limited, however, to documents which arguably have the appropriate relevance to the territorial nexus issue between the parties.
25 This latitude that is afforded to the applicant must be availed of without delay. I would intend fixing a period of 21 days for the applicant to issue any summonses for production and to initiate any discovery process. Thereafter, both processes must be completed without delay.
26 I intend standing these proceedings over with liberty to apply, which may be exercised by either party at short notice. In any event, the applicant's solicitor is personally directed to inform my associate in writing within six weeks of this date about the progress of these interlocutory processes and as to an anticipated date upon which they will be completed. Of course, if they are not undertaken or if they are completed within this time frame, my associate should be notified at the earliest possible opportunity. All such notification should, of course, be made in conjunction with the respondents' solicitor. Arrangements will then be made for the proceedings to be re-listed to take any further evidence and for final submissions.
27 I will reserve costs.