Pelark v Apoyan S91/1999 [1999] HCATrans 659 (15 December 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S90 of 1999

B e t w e e n -

CRISTINA CALIN

Applicant

and

ANTHONY ANTO APOYAN

Respondent

Office of the Registry

Sydney No S91 of 1999

B e t w e e n -

FARHAD PELARK

Applicant

and

ANTHONY TO APOYAN

Respondent

For Mention

GLEESON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 15 DECEMBER 1999, AT 9.30 AM

Copyright in the High Court of Australia

____________________

MR D. KNAGGS: I appear for the applicantS in both cases, your Honour. (of Douglas Knaggs)

MR S.C. GRAHAM: I appear for the respondents in both matters. Mr Tonner apologises for not being here this morning. (of Moray & Agnew)

HIS HONOUR: These are two separate applications, are they, Mr Knaggs?

MR KNAGGS: Yes. They will run together, I submit, your Honour, because both the driver and the passenger were victims of the one accident so the two cases are identical.

HIS HONOUR: As I understand it, under the Rules, these matters will be deemed to be abandoned tomorrow, is that right?

MR KNAGGS: I think that is right, your Honour, yes. I think I am short of only the formal orders which I would hope to be able to get today, but may not, from both the Court of Appeal and the District Court.

HIS HONOUR: Why have they not been obtained already?

MR KNAGGS: Your Honour, I have no excuse except that the formal orders were overlooked. I obtained the copies of the judgments themselves and filed them, but the formal orders were overlooked by me.

HIS HONOUR: But according to my information, on 20 September of this year a letter was sent to you requesting the formal orders.

MR KNAGGS: Yes. I apologise to the Court, your Honour. I read that simply, apparently in a hasty reading, as simply the judgments but not the formal orders.

HIS HONOUR: You do not have any application to make today?

MR KNAGGS: Only if your Honour is so minded that you extend until Christmas Eve, 24 December, the time before which the matter will be deemed to be abandoned in case I cannot get hold of those orders during the day.

HIS HONOUR: Why should I do that?

MR KNAGGS: Because of the balance of prejudice to the applicant if the time is not extended, with respect, your Honour.

HIS HONOUR: But you have not given me any information as to why it has not been possible to get the orders so far. Is it because, for example, there is some delay in the District Court?

MR KNAGGS: No, no, your Honour.

HIS HONOUR: How long does it take to get one of these orders after you seek to take them out?

MR KNAGGS: Usually two or three days, your Honour.

HIS HONOUR: What is the procedure currently in the District Court, or the Supreme Court, for obtaining the formal orders?

MR KNAGGS: Simply to file the forms themselves and then, if approved, the Registry will then have them signed and entered.

HIS HONOUR: What, you prepare the draft orders?

MR KNAGGS: Yes.

HIS HONOUR: And file them, and they usually issue within two or three days, assuming they are in order?

MR KNAGGS: Yes, your Honour.

HIS HONOUR: Now, when did you file the draft orders in this matter?

MR KNAGGS: I have not had time to do it, but I am going to do it as soon as I leave the Court, your Honour, and I would hope to have them by next Friday and filed and the matter fully in order.

HIS HONOUR: You were asked by this Court to do that on 20 September.

MR KNAGGS: Yes, your Honour. I concede it is inexcusable, your Honour, but I simply was not conscious until yesterday that I was short of those orders, because I had misread the letter.

HIS HONOUR: Have you prepared the draft orders?

MR KNAGGS: No, your Honour.

HIS HONOUR: Is it because you are too busy doing other things?

MR KNAGGS: Your Honour, yesterday I worked on this matter and I obtained copies of the judgment and started to prepare the draft index and only then became aware that I had not had the orders done. But I do intend to file them by 10 o'clock today.

HIS HONOUR: What do you say, Mr Graham?

MR GRAHAM: Your Honour, I was only handed a copy of the draft notice of appeal this morning as we walked into Court. Both of these matters should not be before this Court, in any event. The matter turned on the question of fact that the trial judge was quite entitled to make. The Court of Appeal was not interested in the appeal. The matter should not be here. My client would be very unlikely to recover any costs of this application or, indeed, the Court of Appeal costs and further extension of time in this matter is simply unacceptable and should not be given.

HIS HONOUR: What exactly is it you seek an extension of time for, Mr Knaggs? What precisely is your application?

MR KNAGGS: My application precisely is to file the formal orders in the courts below and the index and application book by 24 December.

HIS HONOUR: You seek an extension of time for filing the formal orders in the Court of Appeal, is that right?

MR KNAGGS: Yes.

HIS HONOUR: The formal orders of the Court of Appeal - - -

MR KNAGGS: Of the Court of Appeal and of the District Court below.

HIS HONOUR: Hang on. How could you have got to the Court of Appeal if you did not have the formal orders of the District Court?

MR KNAGGS: That is perfectly correct, your Honour. I have those and I will not have any problem filing those today.

HIS HONOUR: So what you seek an extension of time for is filing the formal orders in the court below and an index for the appeal book, and what else?

MR KNAGGS: And the appeal book itself, once the index is settled within, say, four days of the index being settled.

HIS HONOUR: Is the appeal book prepared?

MR KNAGGS: No, your Honour. It cannot be until I obtain the orders.

HIS HONOUR: Mr Knaggs, is there even the remotest prospect that the appeal book would be in a position to be filed by 24 December?

MR KNAGGS: Your Honour, the order I should seek - and I apologise, I should reform it this way - that I will file the formal orders of the court below and the index - - -

HIS HONOUR: To the appeal book.

MR KNAGGS: To the application book and the application book within a week of the index being settled by the Registry.

HIS HONOUR: I will extend until Wednesday, 22 December, the time for filing the formal orders of the court below and the index to the appeal book.

Is there any reason why you should not pay the costs of today's proceedings - or your client should not pay the costs of today's proceedings?

MR KNAGGS: There is probably no reason why I should not pay the costs of today's proceedings, your Honour.

HIS HONOUR: That is a matter between you and your client, Mr Knaggs.

MR KNAGGS: Yes, your Honour. In that case, the answer is no.

HIS HONOUR: Anything you want to say about that, Mr Graham

MR GRAHAM: No, your Honour.

HIS HONOUR: The applicants must pay the respondent's costs of the proceedings today.

AT 9.38 AM THE MATTER WAS CONCLUDED