Allmark v Mossensons (A Firm) [2007] HCATrans 166 (27 April 2007)

Last Updated: 8 May 2007

[2007] HCATrans 166

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P21 of 2006

B e t w e e n -

MARLON ALLMARK

Applicant

and

MOSSENSONS (A FIRM)

Respondent

Publication of reasons and pronouncement of orders

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 27 APRIL 2007, AT 9.17 AM

Copyright in the High Court of Australia

GUMMOW J: The respondent is a legal firm. It commenced actions against the applicant for a debt of unpaid fees amounting to $907.41.

The applicant was absent for the tenth day of hearings in the Magistrates Court. In his absence, the respondent obtained an interlocutory judgment in its favour on 10 February 2005. The applicant then filed an application under s 73 of the Local Courts Act 1904 (WA) to set aside the Magistrate's judgement. On 23 March 2005, the Magistrate made orders that the judgment be set aside, subject to the applicant meeting certain conditions. These conditions included the provision of security for costs.

The applicant did not meet the conditions of the Magistrate's order and the judgment was thus not set aside. The applicant did not appeal against the judgment dated 23 March 2005. Instead, he commenced an appeal from the judgment dated 10 February 2005 in the District Court, out of time. In the District Court, her Honour Wager DCJ struck out the notice of appeal, refusing an extension of time.

In the Court of Appeal, Pullin JA and Buss JA dismissed an application for leave to appeal. Their Honours then considered the circumstances of the case in depth, and set out the applicant's need to explain a delay in appealing the Magistrate's decision. Despite the countervailing factors including errors of law in the decisions of the Magistrate, which remained uncorrected by the District Court judge, the Court of Appeal concluded that there had been no substantial injustice done to the applicant.

The applicant's case before this Court rests on the errors in the Magistrates Court and the District Court. It does not disclose error in the Court of Appeal's conclusion that the applicant's failure to explain the delay in seeking leave to appeal justified the termination of his case. There would be no prospects of success on any appeal to this Court, and accordingly special leave is refused.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.

I publish the disposition signed by Justice Heydon and myself.

AT 9.19 AM THE MATTER WAS CONCLUDED