Toll Holdings Ltd v Stewart

1. The first and third respondents (the DSE parties) file and serve within 7 days a document no more than 3 pages identifying the basis of objection to paragraphs [24] and [25] of the second respondent's outline of submissions and a proposed procedural mechanism for the disposition of issues raised by paragraphs [24] and [25] by a single judge prior to the appeal.
2. The second respondents file and serve within 7 days thereafter a document of no more than three pages in answer to that.
3. The parties should bring to the attention of the chambers of Justices Beskano, McKerracher and Pagone the terms of these reasons, the terms of these orders, and the documents that I have ordered to be filed.
4. The question of costs be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ALLSOP CJ: 1 This matter is an appeal from orders made by a judge of the Court: see Toll Holdings Ltd v Stewart [2016] FCA 256. The case involved the attempted stoppage in transitu of various televisions and electrical apparatus sold by the second respondent (MTC) to the Dick Smith parties, transported by Toll Holdings, the appellant. The findings by the primary judge were that Toll converted the goods, notwithstanding the attempted stoppage in transitu. 2 Consequent upon some amendments to the notice of appeal, it seemed as though the Dick Smith parties, the company and the receivers, would be able to extract themselves from the litigation. 3 The appeal has been largely prepared in the sense of appeal books and submissions having been efficiently filed by the legal representatives of the parties. 4 A problem has arisen from paragraphs 24 and 25 of the second respondent's outline of submissions. Those two paragraphs are in the following form: [24] Independently of the notice of contention, if orders 2 and 4 made on 18 March 2016 are varied or set aside, MTC submits that a corresponding restitutionary remedy arises. Similarly to an order for repayment of a money judgment set aside on appeal, the Court should order restitution in respect of the property rights varied on appeal. 14 That restitutionary principle was recognised in Rodger v Comptoir d'Escompte de Paris (1871) 3 LA PC 465 at 475 where Lord Cairns said: [25] "…one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the Suitors, and when the expression 'act of the Court is used, it does not merely mean the act of the Primary Court, or of any intermediate Court of Appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case. It is the duty of the aggregate of those Tribunals... to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court." (Footnotes removed) 5 The restitutionary claim that is now made is, in effect, against the Dick Smith parties who were to withdraw from the litigation. Mr Stewart, who appears for the Dick Smith parties, objects to the propounding of this claim in the appeal. He submits that procedurally it requires a notice of cross-appeal to be properly founded. And he submits that there are various procedural and substantive answers to the claim. 6 The question is how this should be worked out and dealt with, given that the matter is listed for hearing on 21 November 2016, presently between the appellants, Toll, and the second respondent, MTC. There appear to be three alternatives: first, to attempt to deal with this through a single judge in the appellate jurisdiction, dealing with procedural matters such as a summary disposal of any claim; secondly, to wait for the outcome of the appeal, because the issue only arises if the primary judge's orders are varied or set aside; or thirdly, to ventilate and deal with the matter during the appeal. 7 The matter has come before me because I had a case management hearing of the matter earlier in the year. Since that time, a bench has been allocated to the matter, and the hearing has been listed for 21 November 2016. One of those judges, Justice Besanko, is presently on leave. I am not sure what the most appropriate course is. I have not heard the parties finally on that, although both Mr Stewart and Mr Cox have given me a helpful indication as to their views. 8 My present feeling is that the likelihood is that costs will be minimised by dealing with this in the appeal. But I think before that decision is made - and it is a decision that should be made by the appeal bench, in my view - the parties can identify the basis that the matter could be dealt with by a single judge, so that the appeal bench can decide whether or not to hear the matter as part of the appeal, or delegate one of the judges to hear a procedural application. Thus, the orders that I propose to make are as follows: (1) The first and third respondents (the DSE parties) file and serve within 7 days a document no more than 3 pages identifying the basis of objection to paragraphs [24] and [25] of the second respondent's outline of submissions and a proposed procedural mechanism for the disposition of issues raised by paragraphs [24] and [25] by a single judge prior to the appeal. (2) The second respondents file and serve within 7 days thereafter a document of no more than three pages in answer to that. (3) The parties should bring to the attention of the chambers of Justices Beskano, McKerracher and Pagone the terms of these reasons, the terms of these orders, and the documents that I have ordered to be filed. (4) The question of costs be reserved. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.