Forrester, In the matter of an application for leave to issue or file [2019] HCATrans 156 (14 August 2019)

Last Updated: 14 August 2019

[2019] HCATrans 156

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S26 of 2019

In the matter of -

an application by DAVID NATHANIEL ALEXANDER FORRESTER for leave to issue or file

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 14 AUGUST 2019, AT 9.39 AM

Copyright in the High Court of Australia
HIS HONOUR: On 23 January 2019, the applicant filed an application for leave to file a summons in this Court to reopen his application for special leave and for the grant of special leave to appeal. For the reasons that I now publish, I would dismiss the application.

The order is:

1. The application is dismissed under r 25.09.1 of the High Court Rules 2004 (Cth).

I publish that order.

I direct that the reasons as published be incorporated into the transcript.

On 2 January 2018, Mr Forrester brought an application for special leave to appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales (Basten, Macfarlan and Meagher JJA). Mr Forrester was represented by senior and junior counsel. The issue at trial, in broad terms, had been whether Mr Forrester was in a “close personal relationship” and “living together” with the deceased at the time of her death, so that he was eligible to apply for provision out of the deceased’s estate. The primary judge (Lindsay J) held that Mr Forrester was so eligible. The Court of Appeal allowed the appeal and ordered that Mr Forrester’s summons be dismissed. The special leave questions raised by counsel were, in broad summary, whether the Court of Appeal was correct to have concluded that the primary judge was precluded from (i) finding that the applicant and the deceased were living together in a close personal relationship at the time of the deceased’s death, (ii) making an observation that the applicant had mental health problems based on the totality of his evidence and his manner of giving evidence in court, and (iii) taking into account a mental health problem in assessing the applicant’s evidence.

On 19 April 2018, Gageler and Keane JJ dismissed Mr Forrester’s special leave application on the papers, on the basis that the proposed appeal had insufficient prospects of success. The order was sealed on 24 April 2018.

On 30 November 2018, Mr Forrester then sought to file a summons in this Court to reopen his application and for the grant of special leave to appeal. On 10 December 2018, Bell J directed the Registrar to refuse to file the application for a summons without prior leave of a Justice. This application is for that leave.

The reason Mr Forrester says that his special leave application should be reopened is that his instructions “turned out to have not been communicated to [his] counsel in the way [he] had wished” due to time restrictions on preparation. Mr Forrester says that he had sent his junior counsel instructions which may have been overlooked. He says that he had requested that his application for special leave to appeal include the following ground:

“a. Any Civil plaintiff, myself included, has the right to have their case tried on the basis of the legislation drafted by which to determine their claim, and not additionally be effectively also tried under the N.S.W. Crimes Act 1900 No 40, which is not designed to assist in the determination of a civil claim, and more particularly as:-

i. There was no c[r]ime committed;

2. The order for the holding of the Trial as given by His Honour Justice Hallen, specified that no document was to be introduced, which would give a forensic advantage, the natural purpose of this order being that the Plaintiff would receive a fair trial. His Honour always gives this order for every Family Provisions hearing. Please see annexure AD3.”

I put to one side the delay by Mr Forrester in making his application to reopen his special leave application of over seven months, a delay which is explained to some degree in his supporting affidavit. I also put to one side whether the circumstances of this case could engage the authority of this Court to reopen its sealed orders^[1]. Whether or not such power exists, a new application for special leave is capable of being brought because a special leave application is not a final decision. Nevertheless, in either case the interests of finality, including the inconvenience to the parties and this Court and the expense and delay arising from a further hearing, are powerful factors which constrain a party’s ability to bring a new application. Exceptional circumstances are required.

I also put to one side whether the reason for the failure to implement Mr Forrester’s instructions may have been the belief of counsel that his proposed ground of appeal was not reasonably arguable in any form, such that their ethical duty was not to present it.

The simple reason why Mr Forrester’s application for leave to issue or file his application is refused is because the proposed ground of appeal would have had insufficient prospects of success to warrant the grant of special leave to appeal. No such prospects are evident in the application. Mr Forrester was given the opportunity to file written submissions in support of this application for leave to issue or file his application. In the submissions filed, Mr Forrester describes, with some eloquence, the background to the litigation, his claims, and his circumstances. However, his submissions also do not provide any basis from which to conclude that his additional proposed ground would have sufficient prospects of success to warrant the grant of special leave to appeal.

This application does not provide any arguable basis for reconsideration of Mr Forrester’s application for special leave to appeal. The application should be dismissed without an oral hearing pursuant to r 25.09.1 of the High Court Rules 2004 (Cth).

AT 9.39 AM THE MATTER WAS CONCLUDED

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[1] De L v Director-General, NSW Department of Community Services [No 2] [1997] HCA 14; (1997) 190 CLR 207 at 215; [1997] HCA 14; Clone Pty Ltd v Players Pty Ltd (In liq) (Receivers and Managers Appointed) [2018] HCA 12; (2018) 92 ALJR 399 at 412‑414 [52]‑[60]; [2018] HCA 12; 353 ALR 24 at 37‑40; [2018] HCA 18.