Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited

THE COURT: 1 On Wednesday 29 August 2001 the Court heard argument concerning two notices of motion filed on 12 March 2001. The first sought an extension of time in which to apply for leave to appeal from two interlocutory orders and judgments of a judge of this Court (Hely J) given on 10 July 2000 and 16 August 2000 requiring the applicant (in the proceedings and to the two motions before the Court) to provide for security for costs in an amount of $223,193.00 and also sought leave to appeal from the orders made pursuant to those judgments. The second sought leave to appeal from an order of the same judge given on 5 March 2001 setting aside a notice to produce issued by the applicant. 2 At the conclusion of the hearing the Court pronounced orders that the two motions be dismissed with costs. The Court indicated that it would hand down reasons in due course. These are the reasons of the Court for those orders. 3 The applicant sues the respondent claiming that the respondent contravened s 52 of the Trade Practices Act 1974 (the TP Act) and seeking declaratory relief and mandatory orders under ss 80 and 163A of the TP Act. It is unnecessary to deal with the issues raised in the substantive proceedings at any length. The nature of them can be gleaned from the decision of the High Court in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 169 ALR 616, in which the question of the constitutional validity of ss 80 and 163A of the TP Act was dealt with. 4 On 29 March 2000, shortly after the matter was completed in the High Court (upholding the constitutional validity of those sections) the matter came before Hely J. At that time, there was on foot an amended notice of motion for summary dismissal and a notice of motion for security for costs. On that day there was discussion between his Honour and counsel about both motions. In respect of the security for costs application, counsel for the respondent accepted that that motion could proceed against an agreed context that the applicant had in the substantive proceedings at least an arguable case. This was relevant to submissions that were being made by counsel for the applicant to his Honour that the applicant needed to put on evidence of an expert nature dealing with the substantive issues in the case: that is, evidence which, it was said, would reveal the strength of the applicant's substantive case. In the light of that concession counsel for the applicant said as follows: Mr Rasmussen: Your Honour, it was a concession that we only received today or notice of it today. I guess, your Honour, what I'm really trying to indicate is that we're not entirely sure precisely what evidence we would need to put on, if any, in reply to what my learned friend might canvas in fourteen days. It had been thought that we needed some expert evidence but given the concession today that's probably… 5 Shortly thereafter the same counsel said: Subject to that qualification [being the lack of knowledge of what evidence the respondent would be filing] I'm led to believe that we have all the evidence that we need with respect to that application. 6 Then towards the end of the directions hearing his Honour said: Well then, whatever the misfortunes of the past I propose to proceed on the assumption for the purposes of the motion that the applicant has an arguable case. That is, of course, without prejudice to whatever position you may ultimately adopt at the hearing. 7 The motions (for summary dismissal and security for costs) came on for hearing on 20 June 2001. The applicant (against whom security was sought) was represented by senior and junior counsel. When asked by his Honour what evidence he had, senior counsel indicated certain material (which did not include any material going to the substance of the applicant's case or designed to display its strength). His Honour heard the security for costs application on that day as well as the motion for summary dismissal. 8 His Honour handed down reasons in both motions on 10 July 2000. We are not concerned with the motion for summary dismissal since his Honour dismissed that motion and the respondent has not sought leave to appeal from that order. However, his Honour dealt with security for costs and indicated that he proposed to order that the applicant provide security for the respondent's costs of the proceedings and that the form and amount of such security was to be the subject of later determination. Thereafter his Honour heard evidence in relation to the quantum of the security and on 16 August 2000 handed down a judgment providing for security in the amount which we have identified. Orders were apparently taken out on 16 August 2000 against which leave is now sought to appeal. 9 No step was taken to seek leave to appeal against these orders and judgments until the notice of motion, heard by the Court on 29 August 2001, was filed on 12 March 2001. 10 That notice of motion identified an affidavit of Carrie Peterson sworn 9 March 2001 as containing the grounds of the application. We were taken to an affidavit of Ms Peterson sworn 12 March 2000. This is the affidavit relied upon together with its various annexures, including the affidavits of Mr Van Ummersen, Ms Lampe and Mr Harris, which were also read. 11 Nowhere in the affidavit of Ms Peterson or in the other affidavits is there any explanation on oath directed to the question as to why the delay which has occurred did occur and some explanation for it. Mr Neil QC who, with Mr Francey, appeared for the applicant before us, sought to identify from such material as there was, a chronology of events from August 2000 to support the proposition that there was evidence that things were happening in relation to the litigation during the course of this period, including contact with Mr Van Ummersen. We do not think it can be gainsaid that things were happening in the litigation involving the applicant. The matter came before his Honour in December 2000 for determination of a further question in relation to the costs of the security for costs application. A notice of motion for dismissal of the proceedings appears to have been filed consequent on the failure to provide security. This motion came before his Honour on 19 November 2000, notice of the motion having been filed on 16 November 2000. In this context a notice to produce was served on the respondent by the applicant which his Honour set aside (such order being the subject of the second motion before us). Mr Neil submitted that during this period consideration was being given to the ability to obtain the security from Mr Van Ummersen and to the question of the obtaining of legal advice of the respondent in relation to the High Court proceedings in order to assist Mr Van Ummersen, and perhaps others, to make a decision or decisions about the wisdom of providing security in relation to the substantive proceedings. However, nothing put by Mr Neil really dealt with the question why approximately seven months elapsed before the application was made. Mr Jackson QC who, with Mr Castle, appeared for the respondent, characterised Mr Neil's submissions as to what was happening in the intervening period as pure speculation. That may be overly harsh. However, we think it clear that no real attempt has been made in the evidence to explain such a long delay; and the piecing together of events in the manner undertaken by senior counsel for the applicant does not reveal any satisfactory explanation for the delay. 12 This case has been proceeding since 1997. A delay of seven months procedurally is a matter of concern. The respondent was entitled to have its position in relation to these procedural matters dealt with promptly if an appeal was to be brought. Appeals in relation to matters of practice and procedure should be dealt with expeditiously and promptly by the parties. If that is not to be done then good reason must be shown why this Court should extend time for leave to appeal. For these reasons we would not extend time to seek leave to appeal from the judgments and orders of his Honour concerning security for costs. 13 If we be wrong about this, and if time should be extended, we are of the view that leave to appeal should not be granted in any event. 14 The decision of his Honour was an exercise of discretion pursuant to s 56 of the Federal Court of Australia Act 1976 (Cth). This provision contains a wide discretion, though one to be exercised judicially. Mr Jackson QC, quite correctly, reminded the Court of what the High Court has said on a number of occasions in not reading down otherwise wide grants of power to a court: see Knight v FP Special Assets (1992) 174 CLR 178 at 185, 202 and 205; Oshlack v Richmond River Council (1998) 193 CLR 72 at 81 [21] and 87 [38]; and CDJ v VAJ (1998) 197 CLR 172, 185 [53] and 201 [110] (to which may be added FAI General Insurance v Southern Cross Explorations NL (1988) 165 CLR 268, 290; Hyman v Rose [1912] AC 623, 631; Owners of "Shin Kobe Maru" v Empire Shipping (1994) 181 CLR 404, 420-1; David Grant and Co v Westpac (1995) 184 CLR 265, 275-6; PMT Partners v Australian National Parks and Wildlife (1995) 184 CLR 301, 313 and 316; Emanuelle v ASC (1997) 188 CLR 114, 136-7; Patrick Stevedores v MUA (1998) 195 CLR 1, 56-57; and Abebe v Commonwealth (1999) 197 CLR 510 at 586 -7 ). 15 His Honour recognised the broad nature of the judicial discretion given to him. Absent an error of the kind referred to in House v The King (1936) 55 CLR 499 at 505, the Court should not interfere with the exercise of that discretion. 16 Before dealing with the only suggested error which was identified in oral submissions put by Mr Neil as having been committed by his Honour, we must deal with one matter contained within the written submissions (not drafted by Mr Neil) which was not dealt with by Mr Neil orally. It was put in the written submissions that his Honour had erred by failing to allow the applicant to tender material concerning the strength of its case. It is true that in the directions hearing of 29 March 2000, his Honour said: The one thing which I am not going to do is permit an application for security for costs to be converted into a mini trial of the proceedings. 17 The matter then proceeded in the way that we have set out in paragraphs [4] to [8] above. Once the concession as to the arguable nature of the case was made (and we take that concession to be, and to have been, a concession concerning the contravention of s 52 and the availability of relief), the matter of leading evidence to show the strength of the case was taken no further. It was certainly taken no further at the hearing by the then senior counsel for the applicant. 18 When a broad discretion such as this is exercised, unless a consideration is one of such nature and stature that, irrespective of the conduct of the parties, it is a matter necessary to be dealt with by the person exercising the discretion (see for example Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186) the parties cannot complain when a person having the discretion does not consider and deal with a matter not placed before him or her as one relevant to be taken into account in the exercise of the discretion. 19 No application was made to his Honour at the hearing to press any evidence concerning the strength of the applicant's case. In those circumstances there can be no error by his Honour in proceeding to deal with the motion as his Honour did. 20 Turning to the one error identified in oral submissions as having been made by his Honour, in paragraph [37] of his judgment his Honour said: In my view, the fact that no private right or special interest of the applicant is involved in these proceedings is a factor which weighs in favour of making an order for security, rather than against it. 21 The applicant said that this sentence reflected a misconception as to how "public interest litigation" should be approached and contained an error of principle. It was submitted that this was the determining factor in his Honour's decision, that it "tipped the balance" and that his Honour had impermissibly placed a barrier, by way of a rule, in the path of such "public interest" litigation. It would mean, according to the submissions, that "public interest litigation" (where there was no private right) would generally attract the making of orders for security and so tend to be stultified. 22 We do not think that this criticism of his Honour is legitimately made. When one reads the sentence in the context of the totality of his Honour's reasons for granting security, it is plain that his Honour was highlighting the fact that no private right or special interest of anyone was being stultified, if granting security meant the end of the litigation. Thus, if the action were to end because of the requirement for security, no private right would be harmed. This, we think, is made clear by reading paragraph [37] in the context of all the reasons concerning security. What his Honour went on to say was that in the light of the fact that no private right would be stultified (which, obviously, tended in favour of making the order for security rather than against it), the applicant was free to engage in the vindication, as it saw it, of the public interest, but on the basis of its potential liability for costs, made plain in cases such as Qantas Airways v Cameron (1997) 148 ALR 378, 380; South West Forest Defence Foundation Inc v Department of Conservation and Land Management [1998] HCA 35; and Botany Bay Council v Minister of State for Transport and Regional Development [1999] FCA 65. Read in this way, as we think it plainly should be, there could be nothing controversial about the sentence in question. Taking into account this entitlement of the applicant and all the other matters mentioned by his Honour, he came to the view that security should be provided. One of the matters which his Honour took into account, as reflected in paragraph [35] of his reasons, was the public interest. 23 We are of the view that no reasonably arguable error of principle is displayed by his Honour's reasons. 24 The proper approach to the matter before us, to the extent that we are dealing with the question of leave to appeal being granted, is to ascertain whether there appears to be any possible error of principle by his Honour in the way he approached the matter (taking into account the need, if any, to reconsider previous decisions which his Honour was, at first instance, bound to apply). We see no error in the approach of his Honour and we see no basis for concluding that the present motion is an appropriate vehicle for the ventilation of any debate about whether or not so-called "public interest litigation" should be dealt with as a separate category from other cases in which costs are being awarded or security for costs is being sought. 25 In our view, no ground has been identified for the granting of leave to appeal against an interlocutory judgment or order involving what is a matter of practice and procedure. For these reasons, in our view, the motion concerning security for costs should be dismissed. 26 This leaves the motion dealing with the setting aside of a notice to produce which had been issued, it was said, in connection with the respondent's motion for dismissal of the proceedings for want of provision of security. Mr Neil addressed this issue in the context of dealing with the question of extension of time and leave to appeal. When we announced orders in those respects at the conclusion of the hearing, he agreed that in the light of the dismissal of the motion concerning security, the motion for leave to appeal against the order setting aside the notice to produce should necessarily be dismissed also. 27 For these reasons both motions should be dismissed with costs.