#gummow

MR SILBERT: If the Court pleases. Your Honours, I propose to address grounds 3 and 2, and to adopt enthusiastically the submissions of the second respondent in relation to ground 1.

GUMMOW J: Why would your enthusiasm help?

HAYNE J: Why? That reveals exactly why the Court of Appeal has gone off the rails, if it has, because the liability that is in issue is the liability in tort and - - -

MR DEAKIN: Indeed. But, your Honour, that reinforces why this Court despite the irritation that it is undoubtedly causing your Honours - - -

HAYNE J: No, it is not a question of irritation.

GUMMOW J: We are constantly irritated but we are boundlessly patient.

GUMMOW J: Lots of trust and confidence flowing between the parties.

MR DOUGLAS: A huge amount, your Honour.

GUMMOW J: They were not hammering out a deal.

MR DOUGLAS: No, but, BTA did repose confidence in the Government and the Agencies in its reliance on the Government's representations - - -

GUMMOW J: What, to look after its interests?

MR DOUGLAS: Absolutely, your Honour. Apparently Mallesons were not going to do that.

McHUGH J: There was a time when counsel who pleaded documents like this would have been sent running around the inner temple with the pleading over his head and a hole cut out.

MR DOUGLAS: Your Honour, I have been wishing to do that for some time, but I am not allowed to do it unfortunately.

McHUGH J: This is plain English pleading, is it?

MR DOUGLAS: Your Honour, there is nothing plain about this document.

GLEESON CJ: I thought a statement of claim was supposed to be a synopsis.

MR DOUGLAS: The relevant provisions of that pleading are well summarised, if I may say so, in the submissions by Mr Bathurst and Mr Gleeson in the first two paragraphs of those submissions.

GUMMOW J: Emperor Joseph II said to Mozart that there were too many notes. There are too many causes of action here.

GUMMOW J: Well that is what I wonder about. Are you not really challenging the affidavit?

MR DOUGLAS: We are challenging the affidavit. Yes, your Honour. We are challenging the claims to privilege made in the affidavit.

GUMMOW J: Yes. Well how procedurally would one do that? It is quite a bit step, is it not?

McHUGH J: It looks very much like a fishing expedition.

MR DOUGLAS: There is plenty of fish in that sea, your Honour. There is more than 300 of them as we would see it.

McHUGH J: Yes, but are there any that you are entitled to catch?

MR LINDSAY: Your Honour, there have been a number of proceedings.

GLEESON CJ: It is the affidavit of discovery that we are after.

MR LINDSAY: The actual affidavit of discovery.

GUMMOW J: Yes.

MR LINDSAY: I am sorry, your Honour, it is not reproduced in the documents.

GUMMOW J: In all these eight volumes.

GLEESON CJ: I think you are taunting us.

MR LINDSAY: I wish I was so brave.

GUMMOW J: We presume we have competent solicitors involved in this activity.

MR LINDSAY: The order that was made by the majority of the court below was expressed to be confined to material of the nature that your Honour described.

HAYNE J: And that was all that was sought in the original motion, so far as presently relevant?

MR LINDSAY: I think the answer to that is yes, although it has been a bit of a moving feast, I must say, and one of the problems with the particular principle, as formulated, it - - -

GUMMOW J: Well, Telstra never seems to have a motion of their own.

MR LINDSAY: Yes.

GUMMOW J: It seems, procedurally, rather loose.

HAYNE J: Without any regard to any notion of how to manage a particularly difficult case with very large and voluminous discovery. There we are. Those who practice in the commercial list in Victoria well know my views on it.

GAUDRON J: You said that there was authority in this Court that said motivation was an element.

MR TRACEY: Well, yes, I had referred you to Ram, and Ram was accepted by three members of the majority in as being the correct exposition.

GUMMOW J: That is a bit of an overstatement, is it not?

GAUDRON J: What exactly was said in Applicant A?

MR TRACEY: It was not exactly disapproved, your Honour.

GAUDRON J: Well, you seem to be retreating further and further by the minute.

MR TRACEY: Well, I am not retreating. In fact, I - - -

HAYNE J: Simply advancing in a different direction, that is what the Army says, Mr Tracey.