Smits & Ors v Roach & Ors [2005] HCATrans 314 (6 May 2005)

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Smits & Ors v Roach & Ors [2005] HCATrans 314 (6 May 2005)

Last Updated: 8 July 2005

[2005] HCATrans 314

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S290 of 2004

B e t w e e n -

LEONARDUS GERARDUS SMITS

First Applicant

JOHN ANTHONY LESLIE

Second Applicant

PLANTOY PTY LIMITED

Third Applicant

and

WALTER EDWARD ROACH

First Respondent

VALERIE ANNE ROACH

Second Respondent

WINNOTE PTY LIMITED (IN LIQUIDATION)

Third Respondent

SYDTECH PTY LIMITED (IN LIQUIDATION)

Fourth Respondent

Summons

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 6 MAY 2005, AT 9.37 AM

Copyright in the High Court of Australia

__________________

MR J.M. IRELAND, QC: If the Court pleases, I appear on behalf of the applicant. (instructed by Moloney Lawyers)

MR J.O. ANDERSON: May it please your Honour, I appear for the respondents. (instructed by Maurice Blackburn Cashman)

HIS HONOUR: Yes, Mr Ireland.

MR IRELAND: Your Honour, this matter comes before the Court today on a summons of 20 April.

HIS HONOUR: Just a moment. Yes, I have it. This is the fault in time?

MR IRELAND: There is, your Honour.

HIS HONOUR: How great was the default?

MR IRELAND: Well, your Honour, I need to explain that in this way. There are two rules that operate now as drop-dead dates. You must, within six months of institution of your special leave application, complete the application books. That is a six month rule. And you must, within 21 days, now – that is new – of getting the settled index of the application book, file the application book.

In this case, your Honour, the original judgment of the Court of Appeal was given on 15 July 2004, but that was the first judgment of the Court of Appeal, with the consequence that the six months under the first rule I have indicated would have run on 11 February 2005. Can I just give your Honour some dates and a chronology, which makes this evident.

HIS HONOUR: Thank you.

MR IRELAND: The parties do not seem to have noticed that, nor does the Registrar, because notwithstanding the – there was a reason for the delay on the part of the applicants in filing their summary of argument, which, in the ordinary course, would have been filed within 28 days of the institution of the application, that is, in September. The Court of Appeal actually revisited its judgment and did not give the supplementary judgment in the matter, as your Honour sees, until 17 December. It was a week after that the applicants finalised their summary of argument, on 24 December, and then the respondents put on their material by 15 February.

By that time, actually, the first rule had operated – the six month deemed abandonment – but the parties did not seem to give attention to that and the Registrar did not raise it. The Registrar then proceeded to settle the application index, and that was communicated to my solicitors on 23 March, which meant that the 21 day rule came into operation and that expired on 13 April, that is to say, a week before this summons was filed.

HIS HONOUR: Yes. You moved on the 20^th.

MR IRELAND: We did. And, your Honour, there was a mistake made in that under the former Rules which operated until the end of last year, it was a 30 day period, rather than a 21 day period. We were within the 30 days, but outside the 21 days.

HIS HONOUR: All right.

MR IRELAND: Your Honour, could I just mention one matter. The summons actually seeks an invocation of leave under Part 41, rule 41.13. But, looking at the matter yesterday, it is clear enough that the power that your Honour might exercise to enlarge the time truly arises under Part 4, rule 4.02, because the power under Part 41 can only be exercised within the six month period. That seems to be made clear by some observations of, I think, your Honour in one case, but most exhaustively by Justice McHugh in something called Olsthoorn v Collins. I can give your Honour a copy of that.

HIS HONOUR: Thank you.

MR IRELAND: So it can be done post facto, but not under the rule we invoke, and that is why there is a proposed amended summons to refer to the right rule, which is annexed to the solicitor’s affidavit.

HIS HONOUR: Yes. Well, it is unwise to specify a rule. You just say you are doing it.

MR IRELAND: Yes, we will not do that anymore. So your Honour can see that the parties – the six month date has operated, there is now a deemed abandonment. Actually, the Registrar has not given a certificate to that effect, but informal notice. The Rules provide for the Registrar to give a certificate, but all parties, I think, recognise that the deemed abandonment now operates, and I am seeking very much the indulgence of the Court to cure that problem, which the Court, I think, does have power to grant.

HIS HONOUR: Yes. Just before you sit down, Mr Ireland, do you have to bear costs of this application?

MR IRELAND: Yes, we do.

HIS HONOUR: And the respondent wants them taxed now. What do you say about that?

MR IRELAND: I do not think we can say much about that.

HIS HONOUR: What is the other side’s attitude to this application?

MR ANDERSON: Your Honour, the only matter that I would raise is that, in my submission, the application should not be granted insofar as it relates to the second respondent, for the reason that any appeal or application for special leave to appeal would be futile. The reason for that, your Honour, is that in the appeal proceedings before the New South Wales Court of Appeal the parties conceded that there was not a viable ground of appeal available against the second respondent.

HIS HONOUR: That is Mrs Roach, is it?

MR ANDERSON: Yes. I can develop that, your Honour.

HIS HONOUR: No, I will ask Mr Ireland. What do you say about that?

MR IRELAND: Well, your Honour, I spoke to my friend about this yesterday. He mentioned to me yesterday that it was in the outline filed. It seems like that on the face, because in the Court of Appeal there was no ground of appeal pursued which would have reactivated the claim for a contract with Mrs Roach. So there is an argument that would remain that if
a new trial were ordered, she would be back in the firing line. I do not think your Honour could really conclude that today - - -

HIS HONOUR: I cannot really get into that this morning, I do not think.

MR IRELAND: - - - but we take that fully on board and, your Honour, I will get some specific instructions about that, because at a practical level - - -

HIS HONOUR: You had better come fully armed with it, though, on the special leave hearing.

MR IRELAND: Of course. Of course, your Honour. It was only a matter raised yesterday, but I will speak to my friend and we will deal with it. So I would prefer your Honour not to make that decision today.

HIS HONOUR: Yes. All right. Anything else?

MR ANDERSON: No, your Honour.

HIS HONOUR: I think I should make the order.

MR IRELAND: Should I include an order granting leave to amend the summons, to specify the right rule?

HIS HONOUR: No, we do not need that. The order will not recite any rule. Now, there has been no participation by the third and fourth respondents, has there?

MR IRELAND: There has been a summary of argument filed by them, but they are companies in liquidation and there was an order made below that allowed the Roaches to speak for them in this case. Mr Parker, I think, was dealing with the matter then, and he has actually put in a separate summary of argument. That appears in my chronology, your Honour, as your Honour sees, 11 March - - -

HIS HONOUR: In response to this summons, have they taken any position?

MR IRELAND: Nothing.

HIS HONOUR: So the costs we are talking about are those for the first and second respondents?

MR IRELAND: Yes, your Honour.

HIS HONOUR: I order that:

1. The application for special leave to appeal herein, filed by the applicants on 18 August 2004, is deemed not to be abandoned and that all steps taken to date on the said application are deemed to have been taken within time;

2. The applicants pay the costs of the first and second respondents of the summons filed 20 April 2005, such costs to be taxed forthwith;

3. Otherwise, the summons is dismissed.

MR IRELAND: I just wondered, the application book has not yet been filed, because this application stood in the way of it.

HIS HONOUR: Yes.

MR IRELAND: Could your Honour just give us a couple of days – the books are here, but we would have to get them further copies and file them. Would your Honour just stipulate a date, next week perhaps, when the application book would be filed? I am sorry.

HIS HONOUR: No, I understand. Are they ready for filing?

MR IRELAND: I think they are, your Honour. I just think we need to get some extra copies. Would your Honour allow us to, say, Monday or Tuesday?

HIS HONOUR: We had better make it a bit longer, I think.

MR IRELAND: Today is the 6^th.

HIS HONOUR: Well, I will add as order 2:

2. The application books be filed and served on or before 16 May 2005;

The costs order 2 will become 3, and the final order will become 4. Thank you, gentlemen.

AT 9.49 AM THE MATTER WAS CONCLUDED