Fidgeon & Anor v Westpac Banking Corp & Anor [2003] HCATrans 532 (12 December 2003)

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Fidgeon & Anor v Westpac Banking Corp & Anor [2003] HCATrans 532 (12 December 2003)

Last Updated: 24 December 2003

[2003] HCATrans 532

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M192 of 2002

B e t w e e n -

ROBERT FIDGEON AND PATRICE FIDGEON

Applicants

and

WESTPAC BANKING CORPORATION AND DARRER FLEITER

Respondents

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 DECEMBER 2003, AT 2.21 PM

Copyright in the High Court of Australia

MR R.D. SHEPHERD: If the Court pleases, I appear on behalf of the applicants. (instructed by Slater & Gordon)

MR R.D. STRONG: May it please the Court, I appear on behalf of the first respondent. (instructed by Mallesons Stephen Jaques)

MR A.N. MURDOCH: May it please the Court, I appear for the second respondent. (instructed by Middletons)

McHUGH J: Yes, Mr Shepherd.

MR SHEPHERD: This is a case, in my contention, in which there was error in the approach which was taken by the Court of Appeal in arriving at their conclusion that they were not satisfied that it would be unjust to allow the dismissal of the appeal to stand. The issue, in my contention, which merits the grants of special leave is whether the Court of Appeal properly applied the principles enunciated in Jackamarra v Krakouer and Another when considering the applicant’s application to extend time for compliance with paragraphs 3, 4 and 9 of an order which was made by consent. The Court will find the judgment in Jackamarra under tab 5 of the book of authorities.

The issue arose in this way. Appeal Justice Phillips, with whom Appeal Justice Batt agreed, considered that Jackamarra v Krakouer supported the proposition that where the appeal has yet to be commenced, there may be a larger consideration of the merits than is otherwise warranted, as appears at page 519, line 3 of the judgment in Jackamarra. That is in part supported by what Lord Denning said in R v Secretary for the Home Department; Ex parte Mehta cited therein. However, that was provided that the consideration of the merits does not go into much detail. As was made clear by this Court – this is at page 520 of Jackamarra:

When the application for an extension of time merely concerns the doing of an act in respect of an appeal already –

commenced - - -

McHUGH J: But your appeal was not commenced. Your appeal was lost. You did not have a right of appeal.

MR SHEPHERD: I contend that the appeal had been commenced for all purposes pro tem and that Appeal Justice Phillips, with whom Appeal Justice Batt agreed, fell into error in considering the matter on the basis that the appeal had yet to be commenced, despite the procedural dismissal which was obtained by a self-executing order. The appeal had already been lodged at the time the extension was sought, to comply with security and other matters. It was not an application to extend the time to lodge the notice of appeal. That had been lodged – certainly, pursuant to an agreement, but it had been lodged. So the point, in my submission, is that the assumption that the appeal had not yet been commenced was wrong.

HAYNE J: Do I read their Honours as saying that they were not persuaded by the material put on from your side that the appeal enjoyed sufficient prospects to warrant resuscitating it?

MR SHEPHERD: Yes.

HAYNE J: What is wrong with that approach, to say, “You have had two procedural indulgences. Now, show us that you have something that is worth allowing to go forward”? Do you say that approach is wrong?

MR SHEPHERD: In my submission, it was wrong in respect of the type of case which was before the Court of Appeal. The case before Justice Byrne took about 27 days at trial. The judgment depended upon findings that required the Court of Appeal, in my contention, to consider the transcripts and undertake a detailed review of the issues and argument. Taking the Court to the application book references, at application book 76, his Honour said he was “content” to deal with the case against the Bank:

as a contest of fact rather than one of legal principle –

Similarly, at application book 83, he stated:

As with the Bank, the case was conducted as a factual dispute and I shall not enter upon any analysis of the contractual and tortious duties –

involved. That was in respect of the case which was made against the solicitors.

Then, having made that clear, his Honour made certain findings which, in my submission, are significant. They included accepting the evidence of Mr Muir’s solicitor that the first contact he had with the project in question was 20 June 1994. In the application book at 28 to 29, that appears. That removed what had gone before that point in time and a substantial amount of the applicant’s claim.

McHUGH J: But, Mr Shepherd, your application does not face up to what the court said at page 223 of its judgment. It gave two grounds for dismissing the application. At 223, line 21, the court said it was “not satisfied on either count”, and one of those was that you had not explained “the delay that occurred in providing the security”. So the onus was on you to satisfy that “there was some merit, some arguable merit”, and to explain the delay, and the judge said he was “not satisfied on either count”. Now, even if your first point was a good point, the other point is fatal.

MR SHEPHERD: In my contention, the weight that the Court of Appeal gave to the merits of the appeal in respect of the application generally cannot, in my submission, be divorced or neatly resected from the issue of the explanation of the delay. At application book 223, about line 25, the Court of Appeal noted that:

The criticisms made in that regard appear to me to be weighty and, in all of the circumstances, I am not satisfied that it would be unjust to allow the dismissal of the appeal to stand.

Now, those circumstances, in my submission, seem to have an impact upon each other. One, in my submission, should not necessarily accept, just because the court was not satisfied the explanation of delay was satisfactory, that that was a basis upon which the application should have been dismissed in any event.

In addition, in my submission, those circumstances one should assume included, by virtue of what appears in the application book 224, about lines 10 to 15, what the costs order should be, if the application succeeded. The court considered what order it might make if the application succeeded, but it did not then go on to consider whether any prejudice would be caused to the respondents that could not be adjusted by an order as to costs. At page 542 in Jackamarra, Justice Kirby, of course, referred to the consideration of whether there was any prejudice.

So, in my submission, there was an explanation of the delay – that appears at application book 216 to 217 – which, in broad terms, was that there was delay on the part of the finance provider to provide the funds in a timely way. Accordingly, in my submission, there being an explanation, one should remove the issue of whether the merits were such that the appeal was not futile.

In my submission, this was a case where, if I am right, there has been an error of procedure and, as a result, a miscarriage of justice. The case is, in my submission, a suitable vehicle. The findings of fact which are necessary have been made by the Court of Appeal and the issue involved in the special leave point, for the reasons which I have advanced, is sufficiently arguable. They are the matters which I wish to submit at this time.

McHUGH J: Thank you, Mr Shepherd. The Court need not hear you, Mr Strong and Mr Murdoch.

The applicants seek special leave to appeal against the refusal of the Court of Appeal of the Supreme Court of Victoria to extend the time for providing security of costs. The failure of the applicants to provide security had the effect of dismissing an appeal that they had brought. None of the issues sought to be raised in the special leave application are of sufficient public importance to warrant the grant of special leave. They are matters that concern and are confined to the parties to the appeal. In addition, an appeal would have insufficient prospects of succeeding on the merits to justify the grant of special leave to appeal.

Accordingly, the application must be refused with costs. The Court will now adjourn.

AT 2.32 PM THE MATTER WAS CONCLUDED