Austin & Anor v Royal & Ors S107/1999 [2000] HCATrans 43 (16 February 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S107 of 1999

B e t w e e n -

KENNETH JAMES AUSTIN and DIANE CHRISTINA AUSTIN

Applicants

and

MICHAEL ROYAL

First Respondent

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED

Second Respondent

PETER ALLEN

Third Respondent

AUSTRALIAN PADDING COMPANY PTY LIMITED (In Liquidation) (Receiver and Manager Appointed)

Fourth Respondent

Application for variation of orders

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 16 FEBRUARY 2000, AT 11.51 AM

Copyright in the High Court of Australia

____________________

HIS HONOUR: Now, you are Kevin James Austin. Is that correct?

MR K.J. AUSTIN: Yes, your Honour.

HIS HONOUR: Are you appearing today on your own behalf and do you have authority to speak for Ms Diane Christina Austin?

MR AUSTIN: Yes, I do, your Honour.

HIS HONOUR: Very well. Thank you.

MR P.M. WOOD: May it please the Court, I appear for the first and third respondents. (instructed by Henry Davis York)

MR T. HIELD: I appear for the second respondent, your Honour. (instructed by Coudert Brothers)

MR G.L. PIGNONE: I appear for the fourth respondent. (instructed by Kemp Strang)

HIS HONOUR: Yes. Well, Mr Austin, you seem to be taking a long while to get your matter in order and I have received, just before I came in, a draft summons which you have prepared which seeks orders that the order previously made by the Chief Justice be varied to give you until 4 pm on 21 March to get the documents, in conformity with the Rules, into the Registry and served on the parties. Is that correct?

MR AUSTIN: That is correct, your Honour. There are three paragraphs in the order for which I am having difficulty preparing the documents. Two of the - on the summons, paragraph (b) on page 2 and paragraph (c), the parts underlined were filed in the Court yesterday.

HIS HONOUR: So, the judgment was filed - the reasons for judgment, is that of the Court of Appeal or the primary judge?

MR AUSTIN: Firstly, the primary judge, the reasons for his judgment were filed and it is only that front sheet that I have got to get; the actual judgment, not the detailed reasons of the judgment.

HIS HONOUR: You have filed the reasons?

MR AUSTIN: Yes.

HIS HONOUR: But not the cover sheet.

MR AUSTIN: Yes, your Honour, in both cases.

HIS HONOUR: Well, a cover sheet is not really essential.

MR AUSTIN: Well, I can get that, I hope, by Friday, by just applying for it downstairs.

HIS HONOUR: Yes. Now, that is dealing with paragraph (c). What is paragraph (b)? Is that the reasons of the Court of Appeal?

MR AUSTIN: Yes, your Honour. They were filed yesterday too.

HIS HONOUR: And they have already been filed. So, you have (a), the judgment of the court below, that is the Court of Appeal.

MR AUSTIN: Yes.

HIS HONOUR: You have filed the reasons for the judgment of the Court of Appeal.

MR AUSTIN: Yes.

HIS HONOUR: And you have filed a copy of the primary judgment, although not the cover sheet.

MR AUSTIN: Yes.

HIS HONOUR: So, all of those are with the Registry.

MR AUSTIN: That is correct, your Honour.

HIS HONOUR: So, what we are concentrating on is the draft notice of appeal setting out the ground of appeal and the summary of arguments that you have in support of your application for special leave to appeal?

MR AUSTIN: Yes, that is correct, your Honour.

HIS HONOUR: The Deputy Registrar has brought to my notice, Mr Austin, that you have not filed the formal orders of the courts below. This may have been a confusion caused by the way in which, in this country, lawyers refer to the reasons as the judgment, but the judgment is the formal order of the court. In America, they refer to the reasons as the opinion. It may be time that we changed our nomenclature too, but you have to get the order, the actual judgment in the sense of the order of the Court of Appeal which I assume is issued by the Registrar of the Court of Appeal under the seal and signature of the proper officer of the Court of Appeal of the Supreme Court of New South Wales. You have not done that yet?

MR AUSTIN: No. What I say there is that I think I could get that by Friday. It is only a matter of making - - -

HIS HONOUR: So, that is paragraph (a), is it? That is subparagraph (a) of your paragraph 2.

MR AUSTIN: The judgment of the court below. No, that is not it, your Honour. That paragraph (a) is the detailed reasons of the judgment, not the actual - - -

HIS HONOUR: That is (b), is it not? That is (b), the reasons for the judgment. So, perhaps you were correct. (a) is the actual formal judgment, the order of the Court of Appeal. That is (a).

MR AUSTIN: Yes. Well, I have not got that.

HIS HONOUR: But you say you can get that by Friday?

MR AUSTIN: I think so, your Honour. It is a matter of applying to the registrar downstairs and - - -

HIS HONOUR: Yes. I am sure if you told the registrar that it was holding up the High Court consideration of your case, the registrar would give it attention. So, that is (a); (b) you have already filed except for the cover sheet, and (c) you say that you filed that in the office of the Registry yesterday, is that correct?

MR AUSTIN: That is correct.

HIS HONOUR: So, we have (a) - well, you say you think you can get quickly; (b) is in order except for the cover sheet, which is not essential, and (c), you have filed the reasons of the primary judge.

MR AUSTIN: Yes, that is correct.

HIS HONOUR: Now, where is your draft notice of appeal and summary of arguments?

MR AUSTIN: Well, they have not been born yet, your Honour.

HIS HONOUR: They are getting to the point that they have passed beyond gestation and the possibility of their being stillborn is looming in front of you.

MR AUSTIN: I realise that, your Honour.

HIS HONOUR: You see, I have before me an order by the Chief Justice of Australia and the Chief Justice gave you until 4 pm yesterday. You cannot just ignore orders of the Chief Justice of your country.

MR AUSTIN: Chief Justice of Australia. I realise that, your Honour, but - - -

HIS HONOUR: Or any Justice of the Court for that matter, even a humble ordinary Justice.

MR AUSTIN: You see, what I am trying to do is that which I can achieve. Now, I do appreciate the importance of the Chief Justice's orders but - - -

HIS HONOUR: But why did you not apply, before those orders expired, to have some extension? That would then probably have gone back before the Chief Justice.

MR AUSTIN: Your Honour, at the time that these orders were made I asked the Chief Justice then to give me the extra time but he cut it short. Now - - -

HIS HONOUR: So, now, having been refused it by the Chief Justice, you are coming to me. Why should I do something the Chief Justice has apparently refused?

MR AUSTIN: Well, if we are going to be struck out because of not being able to comply - I say "not being able to comply", not refusing to comply with orders - with orders (d), (e) and (f) of the orders of the Chief Justice, it is likely that justice, as far as I am concerned, may not be achieved.

HIS HONOUR: Yes. Well, that may or may not be so but justice has a dual face. It looks in your direction and it looks in the direction of the respondents. They have a right to justice and justice includes finality in proceedings and not being messed around and brought back unnecessarily to this Court, and me being called away from my duties to try and sort out this really minor procedural problem. Here am I trying to work out what should be done in a matter which could have been avoided if you had only conformed to the order which the Chief Justice, despite your urgings on him, thought had to be done by yesterday.

MR AUSTIN: Well, I thought paragraphs 6, 7 and 8 of the affidavit, my affidavit of today, explains the reasons why I was not able to comply.

HIS HONOUR: You read an affidavit of 16 February 2000, is that so?

MR AUSTIN: Yes. On page 2, paragraph 5 - - -

HIS HONOUR: Yes, I have that. Is there any objection to my reading the affidavit of Kenneth James Austin which is sworn 16 February 2000.

MR WOOD: No, your Honour.

MR HIELD: No, your Honour.

MR PIGNONE: No, your Honour.

HIS HONOUR: Do any of the parties present wish to cross-examine Mr Austin on the affidavit?

MR WOOD: No, your Honour.

HIS HONOUR: Very well, I will read that affidavit. Just bear with me for a moment. Yes, I have read that. Do you say that this barrister who has volunteered to assist you and is available after 5 March would be appearing for you in the application for special leave before the Court?

MR AUSTIN: I think so, your Honour. You see, it is on a gratis basis. It is a contingency. I cannot pay him. I have got no money.

HIS HONOUR: But you have discussed with him not only the drawing of the notice of appeal and of the grounds under the Rules for granting special leave, and your brief argument, but also appearing for you on the application?

MR AUSTIN: That is my belief, your Honour, that he will be appearing on the application: that he will be drafting it and he will appear in the proceedings. Now, I spoke to him only Tuesday - Monday.

HIS HONOUR: So, you left it until the day before the expiry of the Chief Justice's orders.

MR AUSTIN: Well, he was the last cab on the rank. He has been away.

HIS HONOUR: There are so many cabs. I opened up, yesterday, the law almanac for 1972 and then I looked at the law almanac for the year 2000. It is astonishing the number of cabs there are now. There were very few cabs in those days.

MR AUSTIN: Well, I thought I had legal representation and they jumped ship and I thought I had another one and they jumped ship, and this is where I have been going backwards, backwards, hoping to get - you see, I do not know how to do that at this point of time.

HIS HONOUR: Presumably, you have been given a precedent or can have a look at a precedent in the Court Registry. Quite a few people now prepare their own grounds of appeal and short arguments under the Rules.

MR AUSTIN: Yes, so I was informed yesterday by the Deputy Registrar.

HIS HONOUR: Some of them really do so better than some lawyers. One I heard in Melbourne last week did so and I complimented him on it.

MR AUSTIN: I do not know about that, your Honour. I have got no knowledge of them.

HIS HONOUR: Yes. However, this is what you ask for. I will just see what the other parties have to say and then I will come back to you. Yes, what do you say, Mr Wood?

MR WOOD: There are seven factors against your Honour acceding to this application but in fairness to Mr Austin, because he is not represented, I should direct your Honour's attention to the form of the application for special leave to appeal because it is slightly unusual. It does resemble a notice of appeal in that it sets out in annexure A grounds for appeal and in annexure B it sets out the orders that would be sought. So, your Honour should be aware that perhaps, in substance, some of the matters addressed by the Chief Justice's order may be captured by this form of the application for special leave.

HIS HONOUR: When was that filed? Was that filed after the Chief Justice's order?

MR WOOD: No, no, it was filed on 7 July, which was - - -

HIS HONOUR: So, that was before his Honour the Chief Justice when he made his orders of last December?

MR WOOD: Yes, indeed, five months earlier. In fact, I think it was the only document that was on the file.

HIS HONOUR: So, does this repeat the grounds that were before the Court of Appeal, does it, essentially?

MR WOOD: With additional attacks upon what the Court of Appeal is said to have erred in.

HIS HONOUR: If it had been worded "That the Court of Appeal erred in failing to find" and setting those things out, might it constitute a notice of grounds of appeal to this Court?

MR WOOD: Yes, in substance it is very close to what one would expect a document to look like, but I thought your Honour should know that.

HIS HONOUR: Yes. That might deal with paragraph - - -

MR WOOD: Paragraph (d), I think it is.

HIS HONOUR: Yes. That still leaves the arguments that are required by the Rules.

MR WOOD: Indeed, which is where this application, I think, initially arose and why the matter was put before the Chief Justice. The seven factors, your Honour, are that it is now seven months since the application was filed. The applicants are six months out of time in filing that summary of arguments. A five week indulgence has already been granted. What is now sought is a further five weeks which your Honour will know is two weeks more than the Rules in the ordinary operation provide for the filing of a summary of argument. For the first five months that this application was alive, the applicants enjoyed the benefit of legal representation, and the file will show it was only two days before the matter was listed before the Chief Justice that the solicitor went off the record.

The final two points are that your Honour is entitled to take into account in the exercise of the discretion the fact that these applicants face concurrent findings of fact against them by the primary judge and the Court of Appeal prior to getting near any point of law that may attract a grant of special leave. I do not know whether your Honour has had time to look at any of the judgments below.

HIS HONOUR: I did glance at the Court of Appeal judgment which seemed to deal with legal propositions but you say that was on the hypothesis that the factual questions could be overcome.

MR WOOD: Yes, indeed, and it is captured briefly in the leading judgment, that of Acting Justice Cole in paragraph 8, if your Honour has - it is now reported in the latest New South Wales Law Reports but I do not have it there. I think your Honour will have - - -

HIS HONOUR: No, I do not have that but I have paragraph 8 of the transcript.

MR WOOD: It is page 2, paragraph 8. And that factual finding is then looked at in some detail and paragraph 14 captures it and then it is expanded upon thereafter. His Honour's judgment was concurred in by the other two Justices. The final point, your Honour, is - - -

HIS HONOUR: Did the case turn in any way upon a dispute which was affected by the judge's assessment of the credibility of the parties?

MR WOOD: No. It was a long trial.

HIS HONOUR: Then it is open to the Court of Appeal to review the facts without that impediment?

MR WOOD: Indeed.

HIS HONOUR: And, similarly, in an appeal to this Court, if there has been a failure or inadequate review of the factual findings, then, presumably, that can ground the intervention of this Court.

MR WOOD: Theoretically, if one could encourage this Court to engage in such an exercise which, of course, occasionally it does, but rarely.

HIS HONOUR: Yes.

MR WOOD: And State Rail Authority is a very good example of it.

HIS HONOUR: State Rail is a case where we were led into doing so.

MR WOOD: Indeed.

HIS HONOUR: It does not happen often.

MR WOOD: No. In fact, that case reminds one, I think, how seldom it does happen but it does happen.

The final point, your Honour, is Mr Royal's receivership - and he is the first respondent - is still unfinished solely because of the continuation of this litigation. The ultimate affect of that - we cannot say with certainty the fact that its termination is delayed but it may well be on present indications that the people who would suffer a detriment from that are the unsecured creditors of the company in respect of which he was appointed by the Bank as a receiver.

I should also say to your Honour we do not take any technical point about the way in which the relief is framed before your Honour. The authorities seem to suggest, notwithstanding the self-executing nature of the order made by the Chief Justice, that it remains open to apply relevantly under Order 60 rule 6 for an extension of time, and the FAI v Southern Cross Case in the High Court suggested that that would be - - -

HIS HONOUR: Yes, I am familiar with those cases.

MR WOOD: - - - an appropriate methodology, even though it does not seem to have been captured directly by the summons. But we do not quibble with that. Those are my submissions.

HIS HONOUR: Thank you for the succinct way in which you have put them, and the fair way in which you have referred to matters which are in favour of Mr Austin. But back in 1972 when there were so few judges and barristers, the reasons that you have just outlined would probably have been sufficient to terminate the proceedings here and now but, maybe, since that time there is a greater disinclination to throw people out of court even when greatly delayed, if they are not represented, where what seems essentially to be outstanding is something which one can understand a lay person might have difficulty knowing how to go about preparing and certainly preparing in an effective form.

As well as that, Mr Austin tells me today that there is a barrister who, apparently, is willing to help him and he swears to that in his affidavit and he says not only to help him in drafting the document but to do so and to follow it up in the special leave application. I can tell you that from the point of view of the Court that is really important, if it is possible, because it is an added burden on any judge to hear a matter where a party is unrepresented, but it is a special burden on this Court in special leave applications because there are an increasing number of these and matters are not put succinctly and we have to try and comb through the material for ourselves in a way that you do not have to do if you have a legal representative.

MR WOOD: Your Honour, I have two very short responses to your Honour's observations. The first is that the absence of legal representation may be a consideration as and from December. It certainly was not for the first five months of the special leave application. The second is that it did form an active part of the Chief Justice's determination of which date should be set for the extension or the indulgence on the last occasion, that the vacation was looming and that Mr Austin should be given the benefit of at least some time into the new term within which to obtain legal representation, and we say for your Honour to act otherwise, where his Honour has considered this very matter of the time extension appropriate, would be really to act on a basis no different than what was put to his Honour in December.

HIS HONOUR: But what do you say in relation to paragraphs 7 and 8 of the affidavit, that he now - whatever the failings of the past, he now has a barrister who has volunteered to assist him but is away until 5 March?

MR WOOD: I can only say that that should not weigh in favour of the applicants where they have had an indulgence of the magnitude that was given and that seven months have presently passed. Ultimately, it is not going to work a great prejudice, we would say, to the applicants for the order to stand because their prospects are so low.

HIS HONOUR: Yes. Thank you very much, Mr Wood. What do you say, Mr Hield.

MR HIELD: I have nothing to add, your Honour. I think it is covered by my friend.

HIS HONOUR: Do you support what has been said by the first respondent?

MR HIELD: Yes, your Honour.

HIS HONOUR: First and third. Very well. What do you say, Mr Pignone?

MR PIGNONE: Your Honour, I support what Mr Wood said. I only have this to add, and that is that my client, who is the fourth respondent, is a company in liquidation and this is the only matter that is holding up the finalisation of the administration of that company.

HIS HONOUR: But could you point to any additional prejudice beyond that which you have already suffered if the applicants were allowed until some time after 5 March to have the benefit of legal counsel which is now said to be available to them and which is not available to them until 5 March?

MR PIGNONE: I cannot, your Honour, no. It may be that there might be some small increase or reduction in the amount that may be available to creditors because - - -

HIS HONOUR: But the marginal cost is not great and the marginal utility to the applicants and to the Court is significant.

MR PIGNONE: That is correct.

HIS HONOUR: Yes. What do you say about this, Mr Austin? You and Mrs Austin are really holding up the liquidation of a company and you are causing an awful lot of inconvenience to other parties who have a right to justice as well?

MR AUSTIN: Well, your Honour, basically what happened in this - we need to go back a bit, and looking at the Court of Appeal, the judgment there. The debts of Australian Padding were $2.73 million. We were called upon to pay them as guarantors and I worked with the receivers and we sold our house over which the second respondent, the ANZ Bank had a mortgage, an unspecified amount, just to support the guarantee. We paid them $364,600 and that reduced that $2.73 million by that amount. The receivership then resulted in a surplus for the first receiver of about $170,000, I think he had, and the first respondent and the third respondent, Mr Allen, he sold the premises, the factory, for $880,000-odd, and between the two there was a surplus finished up after all the receivership debts - and the Bank debt was paid off in full, there was a surplus in the receivership of $526,000 plus another contingent asset referred to as "The Gelman proceedings". Ultimately, that contingent asset realised $27,000. So, there was $553,000 in credit. Now, all we ask is give us back our house money. So, the Bank are holding the money that we gave.

Now, looking through the judgment on the Court of Appeal, it seems to me that the three judges at one point or another in their reasons, say that we are subrogated to the rights of the fund. But all we ask is that they pay us what is left before it eats its head off in costs. As to the question - - -

HIS HONOUR: Well, you say that but you are not saying it in the correct way or in the correct form. You are saying it to me now but you are not putting it in writing in the argument that is needed by the Court in order to consider your application for special leave. I mean, you are now at the end of the litigious road. You are in the last court of the country and you just seem to be meandering along and despite an order of Chief Justice Gleeson on 15 December, you do not seem to have a proper sense of urgency. I must say to you, that is my impression.

MR AUSTIN: Well, your Honour, if you can imagine somebody in this position, of looking down the barrel of that $364,000 being taken away from you, to which you believe you are justly entitled, that is a sense of urgency.

HIS HONOUR: I understand that, Mr Austin, but in any - - -

MR AUSTIN: And it worries me - - -

HIS HONOUR: Of course it does, but there are many people far less intelligent that you apparently are who manage to get their applications on before this Court, though unrepresented, and in a form which allows the Court to perform its function, and despite an order of the Chief Justice on 15 December you have not done so and you now want a further six weeks.

MR AUSTIN: Your flattery as to my intelligence, your Honour, I think is unworthy. I am not a very intelligent person at all.

HIS HONOUR: I am not flattering you. I am just saying - it is not a comment on your - it is more a comment on the fact that there are others - there are other people who seem to be able to conform to the Rules and you have not.

MR AUSTIN: Well, circumstances are such that I have not been able to - there is another reason which I am rather - I would prefer not to raise it and that is my own health. You see, I am a blood - heart patient and on blood thinning medication, and this leaves me at times pretty flat and not able to do a lot. I am reluctant to put that forward but it is one of the reasons that has - - -

HIS HONOUR: Well, I think that is a pretty poor reason. I mean, you have had since 15 December until 16 February to have periods when you were not so flat, and when you could have, with the benefit of looking at a precedent, drafted and prepared - you have had the arguments in support of your application. After all, said and done, you were able to get your affidavit and your summons typed up between yesterday - - -

MR AUSTIN: Overnight.

HIS HONOUR: - - - when I listed the matter before the Court and today. If you can do that when you absolutely have to, it strikes me as a pretty poor argument to say that you could not do it between 15 December and yesterday.

MR AUSTIN: I received considerable help from the office of the Court in how to do that; the mechanics of doing that.

HIS HONOUR: That is entirely proper. The Court does try within limits to help - - -

MR AUSTIN: I did not realise that that assistance was available on the other matters. But one other question that Mr Wood raised, and that was as to the unsecured creditors. If we fail in our application to the funds, then they would go to the unsecured creditors. I think the tax department are waiting in the wings to come in as a priority behind us. The tax department vacated the field and went to the grandstand, on legal advice, and they say that we have a priority claim and are subrogated to the funds. The three Court of Appeal judges, one way or another, at different times in their judgment say the same thing.

The trial judge, Mr Justice Giles, did not agree with that. He said we are not, and most of the argument seems to be that we are. Now, the unsecured creditors actually will get very little out of this and we are very substantial unsecured creditors as well. Now, all I can say is - ask your Honour to please go with us a bit, this last desperate throw, and I think we can bring the matter to a satisfactory conclusion.

HIS HONOUR: Well, now, Mr Austin, I am inclined to give you a little bit more time but I am not inclined to give you until 21 March. You tell me that the barrister who is willing to help you is available after 5 March and I think one week from that day should be sufficient time for him to make up his mind whether you have some sort of a case, whether he can prepare it and put it in proper form to bring before the Court, but you will have to pay the costs of this application today, whatever the outcome of the proceedings, because it is your default that has brought the other parties the inconvenience of coming here today. Do you wish to say anything in relation to that?

MR AUSTIN: I am very grateful to your Honour for the - - -

HIS HONOUR: Well, do not worry about that. Do you want to say anything about the costs?

MR AUSTIN: Only that perhaps if they were costs in the cause.

HIS HONOUR: No, you will have to pay the costs, whatever the outcome. You are the party in default.

MR AUSTIN: Well, that is a decision your Honour will have to make. I do not wish to say anything.

HIS HONOUR: Yes, very well.

MR AUSTIN: There is nothing much I can say, really, in fairness.

HIS HONOUR: I now have before me a summons seeking variation of an order previously made by Chief Justice Gleeson.

That order was made on 15 December 1999. His Honour ordered that the applicants, Kenneth James Austin and Diane Christina Austin, by 4 pm on 15 February 2000 file and serve certain specified documents that are necessary to permit the Court to hear and determine the applicant's application for special leave to appeal. Their application comes from the orders of the Supreme Court of New South Wales (Court of Appeal) dated 10 June 1999. The applicants have been represented before me today by Mr Austin alone. It is common ground that the timetable ordered by Chief Justice Gleeson was not complied with. The documents - or all of them - were not filed in compliance with the Chief Justice's order and the Rules of this Court. By paragraph 2 of the order of the Chief Justice it was provided that, in the event that the documents referred to in the first of his Honour's order were not filed and served by the date and time specified by him, the application for special leave to appeal would stand dismissed.

Yesterday, when it became plain that the documents would not be filed by the given time, Mr Austin, on behalf of himself and his wife, appeared at the Court's Registry. He sought an immediate extension of the time to relieve him from the consequence of order 2. I directed that the matter should be listed before me today. No point is taken by any of the parties respondent to the application that it is not within my power now to extend the time or that the order 2 of the Chief Justice's order has already, according to its terms, put the applicants out of Court beyond retrieval. I therefore proceed to deal with the application on its merits.

Very properly, counsel for the first and third respondents has drawn to my notice the form of the application for special leave to appeal which was filed as long ago as 7 July 1999. At least arguably, although defective, that form identifies the chief matters which the applicants wish to agitate before this Court. I was informed today that the reasons for the decision of the Court of Appeal have now, except in an irrelevant respect, been filed in the Registry of this Court. I was also informed that a copy of the reasons of the primary judge has been filed. However, the orders of the primary judge have not been received. The draft notice of appeal which is annexed to the application for special leave to appeal would not be so deficient as to warrant putting the applicants out of Court for default of any indication of the general grounds which they wish to agitate. Therefore, of the documents which the Chief Justice specified in his order, those which are still missing are the formal orders of the primary judge and of the Court of Appeal and the summary of the applicants' arguments, in conformity with the Rules of this Court.

Mr Austin informed me that he would expect to be able to file the formal judgment (orders) of the Court of Appeal by Friday of this week. Accordingly, in substance, the matter which requires attention is the summary of the applicant's argument in conformity with the Rules. This is an essential document, both to inform the respondents of the matters which the applicants urge, to permit the respondents to prepare their reply and to assist the Court to discharge its duties.

The respondents, in their submissions, urged that no further indulgence should be granted to the applicants. They pointed to the fact that it was seven months since the application for special leave was first filed; that the applicants are six months out of time in complying with the requirements of the Rules of this Court; that they have already had at least five months indulgence; and that they were granted a further eight weeks extension by the orders Chief Justice Gleeson with which they have not complied. On behalf of the fourth respondent, a company in liquidation, it was pointed out that the completion of the statutory responsibilities of the receiver and manager who has been appointed in the case of that respondent has been postponed, pending the conclusion of the proceedings in this Court.

I regard the case as a borderline one. Except for the fact that Mr Austin filed an affidavit which has been read in this Court, I would have acceded to the submissions of the respondents. By that affidavit Mr Austin, on behalf of himself and his wife, asserts that he is unskilled in legal matters and the drafting of legal documents and that he has been receiving assistance from lawyers but without positive results. However, he deposes to the fact that he has now obtained the services of a barrister, who is not identified, but who has volunteered to assist him. This barrister is said to be away from Sydney until 5 March 2000. Mr Austin asks, by his summons, for an extension of time until 21 March 2000 within which to file the remaining documents.

The representative of the company in liquidation properly accepted that the additional inconvenience caused to the receiver and manager and the unsecured creditors would not be substantially increased beyond that which has already been suffered by a short extension. The same would appear to apply to the other respondents. It is, of course, always a serious matter to put a party out of Court without disposing of its case on the merits. So much was not really in contest. However, it is also a serious matter to inconvenience other parties. The law upholds the finality of judicial orders. Nevertheless, because of the fact that the applicants are not now legally represented, but have the opportunity of legal assistance from 5 March 2000, I have been persuaded to give them one further and final chance. This is done on the clear understanding that no further extensions will be afforded, nor any more inconvenience to the respondents occasioned by the leniency of this Court.

If the barrister who is available from 5 March 2000 were able to assist the applicants from that day, a week should more than suffice to ensure that the final form of the draft notice of appeal and grounds of appeal, and the final form of the arguments in support of the application for leave to appeal, should be in the possession of the Registry, that is to say, by 4 pm on Monday 13 March 2000.

In making this extension, I have in mind the assistance which the Court would clearly receive if the applicants had the advice of a barrister and the fact that this would ensure that the respondents also knew, in an accurate and appropriate form, the case, such as it is, that the applicants wish to bring.

The applicants must, however, pay the costs that have been incurred by the respondents by the request for this further indulgence. Mr Austin asked that the costs be made costs in the cause. That is not appropriate. It is the applicants who have caused the further inconvenience. They must bear the costs, whatever the outcome of their application.

Accordingly, the orders which I make are:

1. Vary the orders of Chief Justice Gleeson of 15 December 1999 to substitute Monday, 13 March 2000 at 4 pm, as the date and time within which the applicants must file the draft notice of appeal, setting out the grounds of appeal to be relied on in the event that special leave to appeal is granted, the judgment or order sought in place of the orders appealed from, including any special orders as to costs and the summary of argument in conformity with the Rules. By that time, it will also be essential that each of the documents referred to in the orders of Chief Justice Gleeson dated 15 December 1999 should be in the possession of the Registry of this Court.

2. Order the applicants to pay the respondents' costs of and incidental of today's proceedings, such costs to be taxed by the proper officer of the Court.

3 Certify that this was a proper matter for the attendance of the legal representatives of the respondents before the Court in Chambers.

Are there any changes to those orders that you seek, Mr Austin?

MR AUSTIN: In view of your comments, your Honour, I do not think - - -

HIS HONOUR: Just at the moment, are there any changes to the orders?

MR AUSTIN: I do not think so, your Honour.

HIS HONOUR: Are there any changes to the orders, Mr Wood?

MR WOOD: There is one very minor one I would like to raise with your Honour. The formulation of the extension of time, might that have inserted parenthetically a reference to order 1 of the Chief Justice's orders so that it is clear that his self-executing order will be adopted by reference to your Honour's order.

HIS HONOUR: Yes, that is appropriate. That will be done. When the transcript is settled, the order just announced will be in the form of a variation of the order of the Chief Justice to the intent that the operation of paragraph 2 of his Honour's order will continue to apply, but in respect of the orders as so varied.

MR WOOD: Thank you, your Honour.

HIS HONOUR: Is there anything that you wish to raise, Mr Hield?

MR HIELD: No, your Honour.

HIS HONOUR: Mr Pignone?

MR PIGNONE: No, thank you, your Honour.

HIS HONOUR: Yes, Mr Austin.

MR AUSTIN: I think that is fair enough, your Honour. If we go out to the 13th, I was going to suggest the 14th. We seem to be going Tuesday to Tuesday.

HIS HONOUR: No. You have until the Monday at 4 o'clock and not a moment longer.

MR AUSTIN: Thank you, your Honour.

HIS HONOUR: Otherwise you will go off with all guns blazing, but without a hearing in this Court.

Very well. They are the orders that I make.

The Court will now adjourn.

AT 12.41 PM THE MATTER WAS CONCLUDED