AB v State of New South Wales

[2015] HCATrans 45

[2015] HCATrans 045

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S2 of 2015

B e t w e e n -

AB

Applicant

and

STATE OF NEW SOUTH WALES

First Respondent

THE SCHOOL

Second Respondent

BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 4 MARCH 2015, AT 10.32 AM

Copyright in the High Court of Australia

AB appeared in person.

HER HONOUR:   Yes, sir, you are the applicant in the proceedings.  Ms Allars.

MS M.N. ALLARS, SC:   May it please the Court, for the first respondent, your Honour.  (instructed by Crown Solicitor (NSW))

HER HONOUR:   Yes, thank you, Ms Allars.  Sir, you are seeking reinstatement of your application for special leave and as I understand it you rely on an affidavit that you filed on 3 February of this year setting out the reasons for non‑compliance with the rules of the Court, is that so?

AB:   Yes, your Honour. 

HER HONOUR:   You also rely on submissions that you filed on 27 February of this year, is that so?

AB:   Yes, your Honour.

HER HONOUR:   I think I understand the position, sir.  What I might do is just direct some questions to Ms Allars.  It might speed things up.  Ms Allars, as I understand it, it is accepted by the first respondent that the explanation given for the non‑compliance is satisfactory.

MS ALLARS:   Your Honour, we would add to that that with regard to the affidavit on which the applicant relies, we do have objections to parts of that.

HER HONOUR:   I see.

MS ALLARS:   But we may not need to trouble your Honour with that if the applicant is content to rely on paragraphs 1 to 5 because one finds there sufficient, in our view, to explain his delay but some serious allegations are made in paragraphs 21 and 23 and we have concerns – issues about relevance with certain other parts.

HER HONOUR:   Yes, I understand, Ms Allars.  Ms Allars, if I can just detain you a little longer before I go back to the applicant.  You suggest that the contents of the first five paragraphs of the affidavit put the matter in context in terms of the reasons for non‑compliance with the rules.  There is, as it were, no delay to speak of in the efforts that have been taken to rectify what is a procedural failure that has been explained.  In those circumstances, why would I not reinstate the matter?  I understand that you say that the prospects of the grant of special leave are slim.  I do not intend to express a view about that at the present, but in the ordinary course that

matter would be determined by at least two justices.  Why should this applicant not have the benefit of that in circumstances in which there has been a relatively minor procedural irregularity that has attended the matter?

MS ALLARS:   Your Honour, we make that submission because in addition to explanation for the delay and prejudice, both of which are matters which we say are in the applicant’s favour, a third matter which the Court appropriately may consider is what is in the interests of justice and within that test is the test of futility.  If it would be futile to reinstate an application which has no prospects of success at a hearing for special leave then the Court is entitled to refuse the summons for reinstatement.

HER HONOUR:   I think there is no doubt of that proposition, Ms Allars, but when one weighs the various considerations that bear on the exercise of the discretion to reinstate, when the procedural failure is satisfactorily explained and there has been no delay one would think that those are powerful considerations in favour of reinstatement to allow the matter to go forward in the usual way. 

MS ALLARS:   Your Honour, we accept that the applicant meets those two factors relating to the explanation and the lack of prejudice and it is only the third matter which has led us, despite our lack of opposition to raise the issue which is of a broader kind and relates to futility.

HER HONOUR:   Yes, I understand, Ms Allars.  I am against you.  I propose – you have no objection to me reading paragraphs 1 to 5 of the applicant’s affidavit.  I do not read the balance of it.

MS ALLARS:   Thank you, your Honour.

HER HONOUR: The applicant moves on a summons dated 3 February 2015 by which he seeks reinstatement of an application for special leave which was deemed abandoned by operation of rule 41.10.4.1 of the High Court Rules 2004. The decision sought to be appealed was given on 28 November 2014. The application for special leave to appeal was filed on 2 January 2015. It was deemed abandoned as of 4.00 pm on 30 January 2015.

The applicant relies on paragraphs 1 to 5 of his affidavit, affirmed on 3 February 2015.  In brief, he deposes to having attended the Sydney Registry of the Court on 30 January 2015 and, having attempted on that occasion to file his written case in accordance with the Rules, to have been advised that his written case contravened rule 41.10.3(b) as it was 12 pages when the Rules provide that the written case is not to exceed 10 pages.  The applicant deposes to using the Linux operating system and that a difficulty in relation to the formatting of footnotes led to the length of the document. 

He goes on to state that it takes three hours for him to travel to the Registry and in circumstances in which the Registry was about to close it was not possible to amend the written case and file it within time.

The State of New South Wales, the first respondent, does not cavil with the sufficiency of the explanation for the delay.  New South Wales opposes reinstatement, contending that the reinstatement would be futile in circumstances in which the application for special leave to appeal has no prospects of success. 

Whilst futility is a consideration to be taken into account in determining whether or not to make an order for reinstatement, in the circumstances that I have outlined ‑ when the non‑compliance with the Rules has been satisfactorily explained and there has been no delay in bringing the application for reinstatement ‑ in my view, the appropriate course is to make the order that is sought in order that the application can proceed in the usual way and be determined on its merits by a panel of two or more Justices.

Just before I make orders, sir, you will see that the first respondent, the State of New South Wales, submits that if I make the orders that I propose to make reinstating your application, I should reserve the costs to await the outcome of the special leave application.  Do you see that?  I am just directing your attention to paragraph 3.1.  Do you have anything you wish to say about the question of costs?

AB:   Yes, your Honour, I just draw your attention to paragraphs 7 to 10 and 21 to 27 of my affidavit.

HER HONOUR:   I am sorry, I have not ‑ ‑ ‑

AB:   Paragraphs 7 to 10 and 21 to 27 of my affidavit.

HER HONOUR:   I am not sure what the relevance of that material is to the question of the costs of this application.  At the moment, those paragraphs of your affidavit have not been read, sir.  What the State of New South Wales is proposing in the event that I make the order that I have indicated I propose to make reinstating your application is simply that the costs of the application should be reserved to await the outcome of the special leave application.  Do you have anything you wish to put with respect to that proposed form of order?

AB:   Yes, that the State – the matters that I have just drawn your attention to, albeit you have not read them today, indicated the State materially contributed to the delay and the inability to file this application correctly on time and in that case I say that a special costs order ought to be made, or

exactly that costs should not be awarded against me, particularly because of the fact that I would have been able to file this application before the 30th and still have time to file it on time, even if there was an error.

HER HONOUR:   Well, in order to deal with your submission on costs, I understand that you wish to rely on paragraphs 7 to 10 of the affidavit that you affirmed on 3 February, is that so?

AB:   Yes, your Honour, and 21 to 27 as well.

HER HONOUR:   Yes, Ms Allars.

MS ALLARS:   Your Honour, we object to paragraphs 7 to 10 on the basis of relevance.  Those paragraphs concern proceedings in the Children’s Court which were commenced more than a year after the hearing before the primary judge, His Honour Justice Garling.  Paragraphs 21 to 25 we also object to on the grounds of relevance.  They traverse similar territory.  We have an additional objection in relation to paragraph 21 and 23.

HER HONOUR:   Yes.

MS ALLARS:   The first sentence of paragraph 21 and the last sentence in particular refer to a statement that was made in Court which we say – we will not trouble the Court with putting on evidence, your Honour, but we say it does not match the transcript, and paragraph 23 makes a serious allegation, as your Honour will see, in the second sentence which is based on that supposed quotation.  So we object to those matters in that they are not evidence of the truth of the contents thereof.

HER HONOUR:   Yes, thank you.

MS ALLARS:   The only second point, your Honour, apart from the objection to the material on which the applicant relies is that the formal position of the first respondent in relation to this summons is that it does not oppose, and it is only because that question of the interest of justice is a broader one where the first respondent took it to be part of its responsibility just to point to it that it is then raised, but otherwise we have not opposed, so we say that is important in relation to costs.

HER HONOUR:   Indeed.  Thank you, Ms Allars.  Sir, an objection is taken on grounds of relevance to the paragraphs in the affidavit on which you rely.  My provisional view is that the objection is well taken.  If I could simply indicate to you, sir, the relevance to this application of the conduct of proceedings in the Children’s Court some time ago is not immediately apparent.  Unless there is something further you wish to put to me, I do not

propose to read the paragraphs that are the subject of the relevance objection.

AB:   Only that the Children’s Court proceedings were only finalised on 6 February, three days after I filed this affidavit.  I say in my affidavit that this was contrived.  I am a litigant in person.  The State initiated proceedings to basically exploit my weaknesses and inabilities.  The Children’s Court proceeding was finalised in my favour, however, it did take considerable time and effort on my part, drawing on all my resources.

HER HONOUR:   The other point that is made on the question of costs is that the State of New South Wales has not opposed the reinstatement of your application other than by raising an issue concerning the asserted futility of making the order and that is a discrete issue that does not bear on the matter of your non‑compliance with the Rules.  Unless there is something more you wish to put to me, sir, I am inclined to think the appropriate order is to make an order reserving the costs to the outcome of the special leave application.

AB:   Thank you, your Honour.

HER HONOUR:   Yes, very well.  In this matter I make the following orders:

I direct that the application for special leave to appeal filed on 2 January 2015 and deemed abandoned on 30 January 2015 be reinstated.  The costs of the application are reserved to be determined on the outcome of the special leave application. 

Thank you both.

MS ALLARS:   If the Court pleases.

AT 10.52 AM THE MATTER WAS CONCLUDED