Aktas v Westpac Banking Corporation Limited

[2009] HCATrans 263

[2009] HCATrans 263

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S48 of 2009

B e t w e e n -

PAUL UYSAL AKTAS

Applicant

and

WESTPAC BANKING CORPORATION LIMITED (ARBN 007 457 131)

First Respondent

HOMEWISE REALTY PTY LIMITED ACN 001 131 273 TRADING AS CENTURY 21 HOMEWISE REALTY

Second Respondent

Application for special leave to appeal

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 8 OCTOBER 2009, AT 9.36 AM

Copyright in the High Court of Australia

MR T.S. HALE, SC:   If the Court pleases, I appear for the applicant and the second respondent.  (instructed by Penhall & Co Lawyers)

HER HONOUR:   Yes, Mr Hale.

MR HALE:   Your Honour, you have no doubt seen the summons and have seen my submissions?

HER HONOUR:   I have, Mr Hale.  I should also indicate that a letter dated 6 October 2009 was received in the Registry from Mallesons Stephen Jaques, who act for the respondent, Westpac Banking Corporation, stating relevantly that they are instructed that their client neither consents nor opposes to the grant of the relief that is sought in your summons and does not wish otherwise to be heard during the application.  The solicitors inquired whether in the circumstances their attendance was required.  They were informed by the Registry that their attendance was not required.  You appear, Mr Hale, for the applicant, Mr Aktas, and also for the second respondent?

MR HALE:   Well, yes, there is no appearance, I think, for Homewise.  It is not contesting.  It is joined as a party simply so that all parties in the appeal are, in fact, as properly constituted.

HER HONOUR:   Yes, I understand that.  In fact, an appearance has been filed and it is not a submitting appearance, Mr Hale.  It may be that some attention needs to be given to that matter.

MR HALE:   I think that definitely needs to be attended to.  Your Honour, we were, I should say, sent a copy of the letter that your Honour just referred to.  Your Honour, could I formally read the two affidavits of Mr Penhall of 18 September and 6 October?

HER HONOUR:   Yes.  Just let me turn those up.  I have seen them, Mr Hale.  Mr Hale, I do not need to hear from you further.

MR HALE:   If the Court pleases.  Could I just say this, that the draft application books have been prepared, so we are all ready to print.

HER HONOUR:   I had in mind, Mr Hale, extending time for filing the application book to 4.00 pm on Wednesday, 14 October, but, indeed, that may be overly generous.

MR HALE:   I would nonetheless prefer that, even though we anticipate we should have the application books ready early next week.

HER HONOUR:   All right, Mr Hale.

This is a summons claiming orders dispensing with compliance with Part 41 of the High Court Rules and, pursuant to rule 4.02, enlarging the time for filing and service of the application book.

In the submissions filed on 6 October 2009 that were prepared by senior counsel for the applicant, the relief claimed in the summons is characterised as an order having the effect that the application for special leave to appeal be deemed not to have been abandoned.  Mr Hale of senior counsel, who appeared for the applicant, read the affidavits of Garry Neville Penhall sworn on 18 September and 6 October respectively in support of the relief claimed.

The solicitors acting for the first respondent, Mallesons Stephen Jaques, by letter dated 6 October 2009, informed the Deputy Registrar of their client’s instructions that it neither consents nor opposes the grant of relief sought in the summons, and does not wish otherwise to be heard during the application.  The solicitors inquired if, in the circumstances, the Court required their attendance on the hearing of the summons.  The solicitors were advised that the Court did not require their attendance in the circumstances.

Mr Hale announced his appearance, both for the applicant and for the second respondent, Homewise Realty Pty Limited.  I note that Homewise filed an appearance on 19 March 2009.  Homewise was the second plaintiff in the proceedings.  It, and the applicant, brought proceedings in defamation against the first respondent arising out of the dishonour of a number of cheques drawn by Homewise.  Homewise additionally claimed damages in an action for breach of contract.  The claims in defamation were dismissed by the primary judge and her Honour’s orders in this respect were upheld in the Court of Appeal.  Homewise obtained judgment in its claim on account of breach of contract.  The primary judge noted that the applicant is the sole shareholder in Homewise and was, for all material purposes, the principal of Homewise’s business and controlled its daily operations. 

Homewise does not seek special leave to appeal from the orders of the Court of Appeal.  It was named as second respondent in the proceedings in an order that all parties in the proceedings below were joined in these proceedings.  Mr Hale informed the Court of his understanding that it was Homewise’s intention to enter a submitting appearance.  The appearance that has been filed is not limited in that way.  This is a matter to which I understand attention will be given.

The Court of Appeal’s orders were made on 9 February 2009. The application for special leave to appeal was filed on 10 March 2009. Thereafter the applicant’s summary of argument was filed, albeit not within time, but after an extension had been sought. The first respondent filed its summary of argument on 18 May 2009. The draft notice of appeal was filed belatedly on 26 May 2009. Thereafter no steps were taken with the matter and the proceedings were deemed abandoned pursuant to the provisions of rule 41.13.

The applicant’s solicitor was advised of the deemed abandonment by letter dated 14 September 2009. Thereafter the applicant moved promptly to file the present summons. In his affidavit made on 18 September, Mr Penhall sets out a detailed history of the conduct of the proceedings. He has acted for the applicant since an early stage in the litigation prior to the conduct of the 7(a) jury trial. He is a sole practitioner with 40 years experience. However, it appears he has not previously been retained to prepare an application for special leave to this Court. Mr Penhall was unaware of the provisions of rule 41.13.

This is an appropriate case in which to reinstate the application and to extend time in which to file the application book.  The application is effectively ready for hearing.  The delay in the circumstances explained by Mr Penhall has not been great.  Importantly, it was not delay brought about by the conduct of the applicant and has been satisfactorily explained.  Mr Penhall has expressed his regret over the omissions more fully detailed in the affidavit.  The first respondent does not oppose the relief sought.  There is no suggestion of any prejudice to the first respondent.

In the circumstances, I make the following orders:

1.Pursuant to rule 41.13 of the High Court Rules 2004, the application for special leave to appeal filed on 10 March 2009 is reinstated.

2.Extend time for filing the application book to 14 October 2009.

Are there any further orders, Mr Hale?

MR HALE:   No, your Honour.

AT 9.48 AM THE MATTER WAS ADJOURNED