Fonua v Shaw & Ors S93/1999 [1999] HCATrans 655 (15 December 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S93 of 1999

B e t w e e n -

LIUFAU FONUA

Applicant

and

JEFF SHAW (CROWN AGENT AND ATTORNEY-GENERAL FOR THE STATE OF NEW SOUTH WALES, STEVE MARK, CHRIS PUPLICK, MARGARET BRODIE and KAY JACKSON

Respondents

Office of the Registry

Sydney No S94 of 1999

B e t w e e n -

LIUFAU FONUA

Applicant

and

THE BROKEN HILL PROPRIETARY COMPANY LIMITED, JOHN HALL, ALLAN GOLDING, ALLAN KEMP, TERRENCE COLLITS, LEWIS DOWNEY and PETER WALSH

Respondents

For mention

GLEESON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 15 DECEMBER 1999, AT 10.15 AM

Copyright in the High Court of Australia

____________________

MR A. ANASTASI: I appear for all the respondents in the first matter that was called, S93 of 1999. (instructed by the Crown Solicitor for New South Wales)

MR D.A. LLOYD: I appear for the respondents in the second matter. (of Blake Dawson Waldron)

MR L. FONUA: I appear on my own behalf.

HIS HONOUR: Just let me look at the information I have been given in relation to this matter. These matters will be deemed to be abandoned the day after tomorrow unless documents are filed in accordance with the Rules.

MR FONUA: Your Honour, I seek leave of the Court to allow me to file document, draft index, appeal books and other judgments of the court below. My reason is that I receive a letter on 4 November 1999 from the Registrar referring to a letter of 10 August 1999, that mentioning the Rules, have to be ready within six months. I was not aware of the letter and I do not appear to have received that letter.

HIS HONOUR: You mean the letter of 10 August?

MR FONUA: Yes, your Honour.

HIS HONOUR: But you did receive the letter of 4 November?

MR FONUA: I received the letter of November referring to the letter of the 10th.

HIS HONOUR: What did you do about the letter of 4 November?

MR FONUA: I make contact with the Registry office. They say the draft index.....the Registrar and let me know the time to put in. But what I ask the Court to allow me extension of time because I was not aware of the Rules. I did not want to take a risk to fail not to file all document within the six months. This the first time I was aware there was a letter sending to me and I check my record. I did not receive the letter. That is why I ask the Court to allow me extension of time to deal with the matter. With sufficient time as soon as possible.

HIS HONOUR: Just let me get clear the documents that need to be filed.

Mr Anastasi and Mr Lloyd, what I am contemplating doing is fixing a limited time within which Mr Fonua is to file the documents that remain unfiled and ordering that his appeal will be automatically dismissed if the documents are not filed within that time. Is there anything you want to say about whether I should take that course and about what the time I should fix might be.

MR ANASTASI: Your Honour, I have no objection to that proposal. With regard to the time to be fixed, I would submit that a period of time no more than four weeks would be appropriate.

HIS HONOUR: What do you say, Mr Lloyd?

MR LLOYD: We would urge the Court to grant a short period of time. Mr Fonua has brought other appeals at least involving my clients to this Court and he is well aware of the procedure from previous applications.

HIS HONOUR: Is there anything further you want to say about that, Mr Fonua?

MR FONUA: Your Honour, I believe in the interests of justice this Court should grant me extension of time, about four weeks. I will do my best to file all documents required according to the Rules.

HIS HONOUR: I order that the applicant file in the Sydney office of the Registry, and serve on the respondents, by 4 pm on Wednesday, 19 January 2000, the following documents:

(a) the judgment of the court below;

(b) a copy of the primary judgment and the reasons, if any, of the primary court that were before the court below, and

(c) such other documents, if any, as are necessary for the proper determination of the application.

I also order that in the event that the documents to which I have referred are not filed and served by the date specified, the application for special leave to appeal shall stand dismissed.

Is there any reason why you should not be ordered to pay the respondents' costs of today's proceedings which were rendered necessary by your default?

MR FONUA: I think it is not necessary in this matter to award costs against me. It was out of my control. I was not aware of the six months rule and I ask this Court for each party to pay its own costs in attending.

HIS HONOUR: It has been suggested to me a moment ago, Mr Fonua, that you are quite an experienced appellant. Is that right?

MR FONUA: I think the only reason I failed to lodge the document within the time limit because I was not aware of the letter, that six months, everything must in. That is why I ask your Honour to have fair consideration of my request not to award costs against me.

HIS HONOUR: I order the applicant for special leave to appeal to pay the respondents' costs of and incidental to today's proceedings, such costs to be certified by the proper officer of this Court. I certify this is a proper matter for the attendance of counsel in chambers.

AT 10.22 AM THE MATTER WAS CONCLUDED