Applicant S277-2001 v MIMA
[2002] HCATrans 345
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B18 of 2000
B e t w e e n -
SOL THEO
Applicant
and
THE OFFICIAL TRUSTEE IN BANKRUPTCY
First Respondent
ANTHONY JAMES BENNETT and KENNETH PHILP
Second Respondents
Application for review of taxation
Office of the Registry
Brisbane Nos B4 and B5 of 2002
B e t w e e n -
SOL THEO
Applicant
and
THE OFFICIAL TRUSTEE IN BANKRUPTCY
First Respondent
ANTHONY JAMES BENNETT and KENNETH PHILP
Second Respondents
Applications for leave to appeal pursuant to section 27 of the Judiciary Act
GUMMOW J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT BRISBANE ON FRIDAY, 28 JUNE 2002, AT 10.52 AM
Copyright in the High Court of Australia
__________________
MR S. THEO appeared in person.
MR R.M. DERRINGTON: May it please the Court, I appear on behalf of the Official Trustee in Bankruptcy in the matter B18 of 2000. I notice I am listed as appearing in the second matter, but, in fact, we are not a party to the second matter. (instructed by Australian Government Solicitor)
HIS HONOUR: That is right. The second matter arises out of the orders made by Justice Callinan on 19 December, does it not?
MR DERRINGTON: Yes.
HIS HONOUR: And they involve the second lot of respondents, which is not you.
MR DERRINGTON: Indeed, that is correct.
HIS HONOUR: It is Mr Lyons.
MR A.E. LYONS: That is correct, your Honour. I am in both B4 and B5, your Honour. (instructed by Bennett & Philp)
HIS HONOUR: Yes, thank you. Well, we should proceed first, I think, with the second item, that is to say in so far as you are concerned, Mr Lyons. Now, I will indicate to the parties what seems to me to be the position regarding these matters in which Mr Lyons appears for the second respondents. There is before the Court what are called applications for leave to appeal from Justice Callinan’s decision and objection is taken in the written submissions by Mr Lyons’ party that section 27 of the Judiciary Act applies, and I will read that out for you to hear it, Mr Theo and Mr Lyons. Section 27 of the Judiciary Act says:
An appeal shall not lie to the High Court from a decision of a Justice of the Court, or from a decision of the Supreme Court of a State exercising federal jurisdiction –
which is not this matter. So the provision is:
An appeal shall not lie to the High Court from a decision of a Justice of the Court . . . with respect to costs which are in the discretion of the Court, except by leave of the Justice –
which means, as I understand it, except by leave of Justice Callinan. So I have taken the view that that submission is in the nature of an objection to the adequacy of the procedures that have been adopted. Section 16(a) of the Judiciary Act provides:
The jurisdiction of the High Court may be exercised by a Justice sitting in Chambers –
as I am, to deal with:
(a) Applications relating to the conduct of a cause or matter.
And Order 72 rule 1 provides for the giving of directions for matters not otherwise dealt with specifically, as seems to be so here.
There is, therefore, it seems to me, a problem with these applications as they presently stand and I think, Mr Theo, you are going to have to go back to Justice Callinan and seek leave from him under section 27, because he is the Justice who decided your case on 19 and 20 December. You have another application on, which I will deal with this morning, which involves Mr Derrington’s parties, but that seems to me an inevitable operation of the law. It is perhaps unfortunate, but it has to be observed.
MR LYONS: Your Honour, might I be so bold as to interrupt?
HIS HONOUR: Yes, certainly.
MR LYONS: Your Honour, the identity of the Judge sitting today was not known to my client.
HIS HONOUR: Yes.
MR LYONS: Certainly at the time of the written submissions. My instructions are to waive the point as to the identity of the judicial officer if it met the convenience of the Court to dispose of B4 and B5 today.
HIS HONOUR: Yes. What is your attitude, Mr Theo?
MR THEO: My attitude, your Honour, is, as I ‑ ‑ ‑
HIS HONOUR: Do you understand what Mr Lyons has just said?
MR THEO: Yes, so that I do not go back to Justice Callinan.
HIS HONOUR: Yes.
MR THEO: My thoughts on the subject, your Honour, is that if I may be forgiven if – I do not intend to waffle but just ‑ ‑ ‑
HIS HONOUR: I am sure you do not.
MR THEO: But just to take it in a long‑winded type of thing, this situation is an unfortunate situation that goes back six years and the second respondents have entered into this type of legal thing without having a part in it. It was the Public Trustee and myself and they raised their hand up and volunteered to become trustees for sale and then all hell was let loose and eventually the bankruptcy situation was annulled, but they still had their fingers in the pie type of thing.
HIS HONOUR: I know that, Mr Theo, but we have to deal with it step by step.
MR THEO: Yes.
HIS HONOUR: What do you say as to what Mr Lyons has just said?
MR THEO: I suggested to them to call it quits and get it over and done with.
HIS HONOUR: Yes. Are you happy for me to proceed as Mr Lyons has just suggested, without you going back to Justice Callinan?
MR THEO: It is the next best solution, I suppose.
HIS HONOUR: I am not asking you to accept the next best. Do you either agree or not agree?
MR THEO: I have no objection.
HIS HONOUR: I am not pressuring you at all.
MR THEO: I have no objections, your Honour.
HIS HONOUR: All right. Very well then, I shall deal then with things in order, so we will go back and we will deal first with what I might call the new application, which is the summons filed in December. It applies to the costs certificate affecting Mr Derrington’s client, being the certificate of taxation of 31 August and the review of the taxing officer’s reasons of 7 August, which then produced a certificate. That is right, is it not?
MR DERRINGTON: That is correct, if it please the Court.
HIS HONOUR: Yes, all right. Now, you understand which one we are dealing with, Mr Theo.
MR THEO: I would like to – this is concerning Bennett & Philp.
HIS HONOUR: No, it is concerning Mr Derrington’s client, who is the Official Trustee.
MR THEO: Mr Derrington is AGS.
HIS HONOUR: Yes, that is right. He is the Official Trustee.
MR THEO: Yes, okay. I understand.
HIS HONOUR: What do you want to say about that?
MR THEO: What I want to say is that in ‑ ‑ ‑
HIS HONOUR: I am sorry, before we get to that, I should say this. What we are doing in dealing with Mr Derrington’s client, the Official Trustee, is this. Order 71 rule 89 says that:
If a party is dissatisfied with the certificate or allocatur of the taxing officer . . . he may . . . apply to a Justice in Chambers –
which is me –
for an order to review the taxation –
of any particular items and –
The Justice may thereupon make such order as the Justice thinks just –
and that is the area we are in. Now, what do you want to say?
MR THEO: Your Honour, as you see, on my right there is half a dozen wise gentlemen and here I am, little me.
HIS HONOUR: Yes.
MR THEO: So I wish to request the honourable Court’s patience if I am a bit slow. Your Honour, I did mention to your assistant, to track down a particular letter that was handed over to the taxing officer on 3 May last year, and she was kind enough to find it, and it is dated apparently, January 1998. Your assistant, perhaps, can assist in tracking down the particular letter.
HIS HONOUR: Yes, what does it say?
MR THEO: It says that the Public Trustee does not want to have anything to do with this case. He pulls out from any costs. The letter speaks for itself.
HIS HONOUR: Yes.
MR THEO: So it was handed over to the Deputy Registrar on the day – up at the top it says when it was handed over, and he did accept it.
HIS HONOUR: Yes, 3 May.
MR THEO: I beg your pardon.
HIS HONOUR: It was tendered at the taxation on 3 May 2001. It is a letter of 28 January 1998 to you from the Australian Government Solicitor.
MR THEO: Yes.
HIS HONOUR: Have you got that, Mr Derrington?
MR DERRINGTON: No, I do not, but I have read it, your Honour.
HIS HONOUR: I will hand it down.
MR THEO: And if it is possible, your assistant, perhaps, can be kind enough to, at lunchtime, get me a copy, please, because it is a very important document.
HIS HONOUR: Well, we will be moved on by lunchtime.
MR THEO: I beg your pardon?
HIS HONOUR: We will be moved on before lunchtime. We will get a copy made now.
MR THEO: Okay.
MR DERRINGTON: Thank you, your Honour.
MR THEO: This particular letter, your Honour, refers to the wrong file number.
HIS HONOUR: Yes, what follows from that?
MR THEO: I beg your pardon?
HIS HONOUR: What follows from that? We have to get to particular items that were disallowed or were not allowed that you object to.
MR THEO: Right. Before we go to the particular items, your Honour, according to this letter, it is the whole thing, holus‑bolus, if I may use that colloquial expression. So this letter speaks for itself, your Honour, but I did submit there is an itemised list for item per item, and I did that just in the worst of circumstances and I was never informed which ones were accepted and which ones were not.
HIS HONOUR: Yes.
MR THEO: Just to answer your second scale of your question, your Honour.
HIS HONOUR: Yes. Now, you see, one of the things that is put is that, in fact, the taxing officer did reduce some items on review.
MR THEO: Yes, but I mean he did not give me any answers to my criticisms and, as far as I am concerned, I do not know what happened. This gentleman resigned or left or, perhaps, the fact of the matter that he did not follow up my request for that particular letter that you have leaves a lot to be desired.
HIS HONOUR: Yes.
MR THEO: So the situation is that on the strength of that particular letter, your Honour, I think that this subsequent change of heart – perhaps what happened is that there were changes with the Australian Government Solicitor. There was a gentleman – I forget his name – he left, he went to Canberra, and another gentleman took over the duties of the Australian Government Solicitor not knowing what was in the file. Example, even this morning he does not know that this particular letter exists.
HIS HONOUR: Yes.
MR THEO: So for this reason – now I would not try to reduce the volume of my objection to a five minute speech. I would request the honourable Court to refer to the substantial material that I submitted because I have experienced Mr Callinan, when he was present, he said, “What’s it all about?”, and he did not have the opportunity to read, just for a kind word – he did not have the opportunity to read my submissions, not my affidavit, not nothing on the particular review that we were talking and all this is in the file. So I cannot – honestly, your Honour, I cannot, at the drop of a hat, reiterate what is in the substantial number of pages.
HIS HONOUR: Yes.
MR THEO: So that is in a nutshell, your Honour.
HIS HONOUR: Yes, I understand. Well, I will go off and read the pages again.
MR THEO: Sorry.
HIS HONOUR: Let us get this letter though. Let me just read it to myself. Now, did you reply to this in writing?
MR THEO: I beg your pardon?
HIS HONOUR: Did you reply to this in writing, Mr Theo, this letter?
MR THEO: I do not think so.
HIS HONOUR: Well, it asks you to, you see. Look at the bottom of the first page.
MR THEO: Yes. I think somewhere it says that it is an open ‑ ‑ ‑
HIS HONOUR: Yes.
MR THEO: It did not put any ‑ ‑ ‑
HIS HONOUR: “Open” just means it is not confidential, so it can be looked at as we are looking at it now.
MR THEO: I understood that “open” is ‑ ‑ ‑
HIS HONOUR: It does not mean open for ever and ever.
MR THEO: But, I mean, that was the intention at the time.
HIS HONOUR: Well, I do not think so, Mr Theo. I do not think that is what it means. It says:
Please let me have your response in writing.
And I am asking you whether you replied in writing.
MR THEO: I do not think so.
HIS HONOUR: Okay. Now, what else do you want to say? Apart from your written material, which I will look at again, what else do you want ‑ ‑ ‑
MR THEO: The transcript, your Honour, indicates Mr Hack, who was the barrister at the time for the Australian Government Solicitor ‑ ‑ ‑
HIS HONOUR: Yes.
MR THEO: ‑ ‑ ‑ he made few statements, and they are in the transcript where he says that it is unnecessary to carry on with this case – sorry, that is in the transcript, your Honour, and it was a Full Court, that the case did not warrant to go through court because they were not even a party to it and in their list of costs, your Honour, if you please be kind enough to refer to item number 55.
HIS HONOUR: Yes, what does that show?
MR THEO: That is part of my other submissions. I make reference to that particular section and I have to do what I suggested that I cannot do before because of the volume of work, that was that their name was not in the case that was submitted.
HIS HONOUR: Yes.
MR THEO: …..your Honour, 29 August 2000.
HIS HONOUR: Yes, that is right.
MR THEO:
Ordinary letter to applicant informing him of errors in the application book.
HIS HONOUR: Yes.
MR THEO: These particular errors were relevant to the fact that I did not include the first respondent and he said, “No, it is a matter of formality. Don’t worry about it. We’re not going to contest it. It’s a matter of formality.”
HIS HONOUR: Now, this is an item of $21.90?
MR THEO: Correct.
HIS HONOUR: Yes.
MR THEO: So the situation is that I included them in good faith, that they were not a party in the case and then they come up with, not only with a bill but also threatening me to bankrupt me. So, your Honour, it is the transcript which is – I do not remember if I submitted a copy of the transcript, your Honour That is where the comments were that Mr Hack was representing a party that was a stranger to the case that was before and then costs were allowed to such a respondent on Mr Hack’s representation. So unless you will allow me a few seconds to guide you on the particular transcript, your Honour ‑ ‑ ‑
HIS HONOUR: Now, Mr Theo, this is all about an item taxed at $21.90.
MR THEO: No, your Honour. I am referring to that particular item to prove my allegation that they did not intend doing anything.
HIS HONOUR: No, that is not what we are here for, Mr Theo, I am afraid. We are here to deal with this bill of costs. I cannot explain it to you more than once.
MR THEO: Your Honour, one, the bill of costs, as far as I am concerned, I make reference to that particular letter; two, there are the details and I do not which ones he accepted and which ones he rejected.
HIS HONOUR: Now, did you receive a copy of the reasons of the taxing officer?
MR THEO: The reasons for ‑ ‑ ‑
HIS HONOUR: Yes, of 7 August 2001.
MR THEO: No.
HIS HONOUR: A document of nine pages.
MR THEO: I beg your pardon?
HIS HONOUR: A document of nine pages.
MR THEO: No. This is why, in my submission to the Court, your Honour, I ‑ ‑ ‑
HIS HONOUR: Well, wait a minute. Wait a minute, we will dig it out. Have you a letter from the Deputy Registrar of 7 August 2001?
MR THEO: No.
HIS HONOUR: Well, have a look at this, Mr Theo.
MR THEO: No, your Honour.
HIS HONOUR: You have never received that letter?
MR THEO: No. The address is correct.
HIS HONOUR: I see.
MR THEO: What I wish to draw the honourable Court’s attention is ‑ ‑ ‑
HIS HONOUR: Just a minute. If you say you have never received that letter ‑ ‑ ‑
MR THEO: That is correct.
HIS HONOUR: You have never received a copy of these reasons for decision on review.
MR THEO: That is correct.
HIS HONOUR: All right.
MR THEO: Now, I want to add to this particular statement, if I may.
HIS HONOUR: Well, just a minute. Have you made an affidavit in support of your application today?
MR THEO: Yes, your Honour.
HIS HONOUR: What date is that?
MR THEO: I am making reference, and I am using the same affidavit as I did for the May taxing.
HIS HONOUR: I see.
MR THEO: It was in the form of affidavit submissions.
HIS HONOUR: Yes. This is a letter of 27 May 2001.
MR THEO: Yes, your Honour, with the attachment of ‑ ‑ ‑
HIS HONOUR: It is not dealing with the decisions of 7 August.
MR THEO: The decision of 7 August was never communicated to me.
HIS HONOUR: Yes.
MR THEO: The only thing that I received was a taxing certificate dated 31 August.
HIS HONOUR: Yes, all right.
MR THEO: So for this reason, because I did not get that ‑ ‑ ‑
HIS HONOUR: Well, if that is right, do you now seek an adjournment to deal with it, or what do you want to do?
MR THEO: As far as I am concerned, that particular certificate will have to be ‑ ‑ ‑
HIS HONOUR: No, it is not the certificate. It is the reasons for decision. You say you have never seen the reasons for decision.
MR THEO: Right.
HIS HONOUR: It is the reasons for the decision that are the basis of what we are talking about here today, or should be talking about. Now, just listen to me. What do you now want to do about that? I can adjourn this application. I can take a short adjournment and give you a copy of it for you to read it, or we can go ahead without it. Now, what do you want to do?
MR THEO: I do not remember how many items there were, but I mean, in a short adjournment I cannot do it.
HIS HONOUR: Very well, do you want me to adjourn the whole application then?
MR THEO: It might be the reason – sorry, not reason. I did not express myself correctly. It might be necessary and I was hoping that also you will give weight to this particular letter.
HIS HONOUR: No. That letter will not control the matter at all. What will control the matter is the adequacy of the reasons of decision in this nine page document of 7 August. Now, I will adjourn for a few minutes, and a copy can be made of it and you can have a look at it for a few minutes, then I will come back and see what you want to do about it.
AT 11.21 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.31 AM:
HIS HONOUR: Yes, Mr Theo, you want an adjournment, do you?
MR THEO: Your Honour, your assistant was kind enough to ask me ‑ ‑ ‑
HIS HONOUR: She is not my assistant. She is a Court officer.
MR THEO: I am sorry. It is impossible for me to go through it.
HIS HONOUR: I will just ask Mr Derrington about all this. Just sit down for a minute, Mr Theo.
MR DERRINGTON: May it please the Court, we oppose any application for an adjournment, I am sorry to say. Your Honour, on the occasion that this matter was last before the Court ‑ ‑ ‑
HIS HONOUR: This particular matter?
MR DERRINGTON: This particular matter – it was 4 April this year. The transcript might be on the file, although ‑ ‑ ‑
HIS HONOUR: Yes, I have it.
MR DERRINGTON: ‑ ‑ ‑ can I tell your Honour that in that transcript it records that Mr Theo was concerned about the receipt of the submissions on behalf of the Official Trustee in Bankruptcy.
HIS HONOUR: Yes.
MR DERRINGTON: In any event, he was given them at those proceedings, as the transcript reveals. Your Honour, can I take your Honour to the submissions of ‑ ‑ ‑
HIS HONOUR: But is there anything in this transcript of 4 April which contains any indication of receipt of the document we have now?
MR DERRINGTON: No, but the submissions relied upon by the Official Trustee in Bankruptcy, the first respondent, were handed over and they were handed to the Court. A copy is on the file. That document identifies the material relied upon by the Official Trustee. There are two items. One is the certificate of taxation and the second is the reasons for decision on review of taxing officer.
HIS HONOUR: Yes.
MR DERRINGTON: They are clearly and unequivocally identified on the front of that document. They also refer to, in paragraph 8(a), identifying that the reasoning of the taxing officer are complete and fulsome, and that refers to that document, the reason for decisions on review.
HIS HONOUR: Yes.
MR DERRINGTON: Now, with respect, your Honour, the matter was, on Mr Theo’s application, on the last occasion adjourned because he did not want the matter to proceed before Justice Callinan and now he is seeking an application where he was fully informed that there was a document or documents relied upon by the respondents in opposition to the application, and it is up to the applicant if he is not aware of what material is, to make some inquiry or obtain a copy if he did not have it – if he did not have it.
Now, it is the first occasion that it has been suggested, as far as I can apprehend, that he is not in possession of that material. It was highlighted that it was a matter relied upon, importantly by the respondent, and can I add to that, your Honour, that in the scheme of things, the amount in issue is very small and a consequence of persistent adjournments by the applicant only serve to generate an increase for my client in the costs of pursuing its rights.
HIS HONOUR: Yes.
MR DERRINGTON: Now, they are the matters which I would agitate in opposition to any application for an adjournment. May it please the Court.
HIS HONOUR: Yes. Now, if it is adjourned, Mr Theo – just listen to me for a minute, if it is adjourned it will not come back before me, I should think. It would go back to the Brisbane‑resident Judge, Justice Callinan, I would think, and, in any event, you have been late in filing your proceeding, have you not? Are you not out of time? Do you not need leave to extend time?
MR THEO: Your Honour, allow me one ‑ ‑ ‑
HIS HONOUR: Just let me understand. You understand what I have just said to you?
MR THEO: I heard what you said, but I did not understand. If I may, your Honour ‑ ‑ ‑
HIS HONOUR: Well, what I am saying, I will say to you again. If I agree to accept your adjournment application so the matter goes over, it will come back again in Brisbane, I imagine before Justice Callinan, and you will then have to – in addition to the matters we have been debating, you will also have to explain why you were late in instituting this application anyway.
MR THEO: When was that application to be submitted, your Honour?
HIS HONOUR: Within the time specified in the Rules.
MR THEO: Which is?
HIS HONOUR: Yes, within 14 days of the date of the certificate.
MR THEO: Right. Your Honour, that particular certificate was communicated by me in the year 2002 – I do not have the date – and the situation is that the reason why we are here today is because the application was submitted on time. If I received it late, that is not my fault.
HIS HONOUR: The application was instituted on 14 December 2001.
MR THEO: When did I receive the – it was signed by the Deputy Registrar on 31 August, but when did I get it?
HIS HONOUR: I am not going to repeat myself, Mr Theo.
MR THEO: Sorry. It was 26 November.
HIS HONOUR: I am not going to repeat myself, Mr Theo. Do you press your application for an adjournment?
MR THEO: Yes, please.
HIS HONOUR: Very well.
MR THEO: Your Honour, can I request ‑ ‑ ‑
HIS HONOUR: No.
MR THEO: Something else.
HIS HONOUR: Yes.
MR THEO: Only because my credibility is at stake. I wish to tender to the Court this particular letter which is self‑explanatory and ‑ ‑ ‑
HIS HONOUR: You had better show it – has Mr Derrington seen it?
MR THEO: No.
HIS HONOUR: Then show it to Mr Derrington first, please.
MR THEO: I do not have a copy.
HIS HONOUR: Well, what is this about?
MR THEO: It is about the records of the Deputy Registrar’s office, where correspondence was sent to the wrong address.
HIS HONOUR: It is a letter of 26 November 2001 from the District Registrar to Messrs Bennett & Philp, Solicitors. I do not see it bears, at the moment, upon any matter I am debating now. Anyhow ‑ ‑ ‑
MR THEO: I just wanted your Honour – to make you aware that there were changes at the Deputy Registrar’s office, so if something happened with the records, not only of my telephone and fax, I do not know what happened to some of the correspondence.
HIS HONOUR: Yes. Just sit down for a minute, Mr Theo.
MR THEO: I beg your pardon?
HIS HONOUR: Just sit down for a minute. Someone has the letter of enclosure that Mr Theo never received. Have you a copy of this letter? Do you now have a photocopy of this letter of 7 August?
MR THEO: No, your Honour.
HIS HONOUR: You just have been handed one in the course of this morning, have you not?
MR THEO: I received ‑ ‑ ‑
HIS HONOUR: He has not got the letter.
MR THEO: Is this the letter, your Honour?
HIS HONOUR: No, no. Just sit down for a minute, Mr Theo. Now, the letter from the Deputy Registrar to Mr Theo of 7 August 2001 will be Exhibit A and the letter to Mr Theo from the Office of the Australian Government Solicitor of 28 January 1998 will become Exhibit B.
EXHIBITS: Exhibit A…..Letter of 7 August 2001 from the Deputy
Registrar to Mr Theo
Exhibit B…..Letter of 28 January 1998 from the
Australian Government Solicitor to Mr Theo
MR THEO: Forgive me – that is the – yes.
HIS HONOUR: That is the letter of offer.
The orders I make are as follow:
1. Upon condition that the applicant file and serve within 14 days of today an affidavit in which he swears that he has not seen until today, 28 June 2002, the letter of 7 August 2001, Exhibit A, and the reasons for decision referred to therein, I further adjourn to a date to be fixed the application filed 14 December 2001.
2. The costs of today will be costs of the further hearing.
3. I certify for counsel.
Now, if that affidavit is not sworn and filed, the application will stand dismissed. Do you understand that?
MR THEO: I missed the bit of the costs, your Honour.
HIS HONOUR: Costs of today will go over and they will follow the eventual outcome.
MR THEO: Right. A different question: you said something about December?
HIS HONOUR: That is the application filed 14 December 2001. That is what we are here about.
MR THEO: Yes, okay.
HIS HONOUR: And I should add if the affidavit referred to in order 1 is not sworn and filed as stipulated, then subject only to any further order of a Justice, the application filed 14 December 2001 will stand dismissed with costs. I will read it again.
1. Upon condition that the applicant file and serve within 14 days of today an affidavit in which he swears that he has not seen until today, 28 June 2002, the letter of 7 August 2001, Exhibit A, and the reasons for decision referred to therein, I further adjourn to a date to be fixed the application filed 14 December 2001.
2. The costs of today will be costs of the further hearing.
3. I certify for counsel.
4. If the affidavit referred to in order 1 is not sworn and filed as stipulated, then subject only to a further order of a Justice, the application filed 14 December 2001 will stand dismissed with costs.
Is that clear?
MR THEO: Yes, your Honour.
HIS HONOUR: Very well. I will take a short adjournment, then I will come back and I will deal with the other matter. Yes, Mr Derrington?
MR DERRINGTON: I am sorry, your Honour. I apologise for interrupting. Your Honour, the applicant has had our submissions now for some length of time and it might make the matter, when it comes on again, go a bit faster with a bit more structure if he were directed to file some submissions in ‑ ‑ ‑
HIS HONOUR: Yes, that is right. I agree with that.
MR DERRINGTON: Thank you, your Honour.
HIS HONOUR: I have added to that:
5. The adjournment in order 1 is granted upon the further condition that within 28 days of today Mr Theo file and serve a written outline of not more than 15 pages in which he sets out the arguments he will put to the Court on the adjourned hearing.
That will be helpful to you, I think, actually, Mr Theo. Yes, very well. I will take a short adjournment.
AT 11.51 AM SHORT ADJOURNMENT
UPON RESUMING AT 12.03 PM:
HIS HONOUR: Yes. Now we will proceed to the other matter, that is to say the one involving the second respondent, where Mr Lyons is the party in question. Now, what do you want to say in relation to your applications to have leave to appeal from Justice Callinan’s decision, Mr Theo? You normally have 20 minutes to develop that.
MR THEO: I will not take that much time.
HIS HONOUR: Well, take whatever you need.
MR THEO: Yes, thank you. Your Honour ‑ ‑ ‑
HIS HONOUR: Up to 20 minutes.
MR THEO: ‑ ‑ ‑ one, the material that I had submitted and was in front of Justice Callinan was not taken into consideration. Two, the case that was dismissed by Justice Callinan was a case concerning that this costing of the expenses was done by default. There are things that ‑ I have evidence to prove that what I am saying is not fibs, your Honour. The situation is that originally the taxing of the costs was fixed for some time in October, on 12 October.
I was interstate and I mailed a letter from interstate informing – I thought at the time, Mr Ben Wickham was still the Deputy Registrar and I addressed the letter to him, as I have done in previous occasions, that is, when the previous case that you heard, your Honour, was dealt by on 3 May last year. So I had requested at the time an adjournment and he was kind enough to do so. So as far as I am concerned, if on a not even bushman’s lawyer knowledge, I think comes into play the estoppel situation.
The present Deputy Registrar acknowledged having received it on the 10th, unless I am wrong on the dates, but definitely she received it before the due date for taxing of the costs. In her letter dated – yes, in her letter dated 26 November she mentions that she tried to contact me and she got my answering machine and she left a message in my answering machine.
Now, unfortunately I could not take the message from my answering machine as I was not in Brisbane. So it is an unfortunate situation that I could not communicate with her to respond to her message. So the situation is that subsequently when she wrote another letter advising me that she was going to sign the certificates, I was not informed. The conclusion was that these certificates were signed by default and I am accused for failing to obey with the deadlines as per Rules of the Court.
Now, I do have documentary evidence showing that the letter that was dated 19 October was sent to me by fax on 22 November. So as a result I could not submit objections to her decisions. Then the certificates
were issued and the gentlemen on my right undertook notice to bankrupt and all that sort of thing. That is in a nutshell, your Honour.
HIS HONOUR: Yes, thank you. Yes, Mr Lyons.
MR LYONS: Your Honour, the oral and written submissions of the applicant do not identify any manifest error or error of principle in the decision of Justice Callinan. His Honour’s decision was, with respect, the only decision that was available to him on the material. The written outline, your Honour, identifies the various grounds upon which the applicant relies in his written submissions and deals with them one by one. With respect, I do not propose to go through them in great detail unless your Honour would find that of assistance.
HIS HONOUR: No.
MR LYONS: It would be repeating that which is already there.
HIS HONOUR: Thank you.
MR LYONS: In relation to the specific matter mentioned in oral submissions, namely, the absence of Mr Theo in Sydney on the period leading up to the actual taxation, the conduct of the Registrar, with respect, was entirely correct. His Honour Justice Callinan found that the applicant had three weeks notice of the taxation and that he, Mr Theo, had not identified any of the relevant materials that one would ordinarily expect to be found within an application for an adjournment.
He did not, for example, say why it was he had to go to Sydney, why it was he could not go on some other day. He did not propose any alternative date upon which the taxation might conveniently proceed. It was just a bare assertion that he was unavailable and a requirement, almost peremptory, that the taxation proceed on some other occasion. His Honour Justice Callinan did not err in any way in saying that was not a proper application and that there was nothing tainting the decision of the Registrar with error such that it should be overruled. Thank you, your Honour.
HIS HONOUR: Yes, Mr Theo, is there anything you want to say in response to that?
MR THEO: Yes. In regard to the way the honourable Justice Callinan tackled the case was that I want to say that Justice Callinan did not know – with all due respect to him, did not know if he had the authority to look into my case or not and he asked Mr Lyons, who was kind enough to assist and tell him, yes, he had the authority. There were other things that are in my appeal, your Honour, extensive things, but I cannot again over the top of my
head rattle away the details why I think – why I am of the opinion that Justice Callinan erred with his decision. One of the points was a psychological point, your Honour. I in turn had erred and parked in a parking meter in my car.
HIS HONOUR: Yes, I have read that.
MR THEO: So, I mean, I admit that I should have known better, that the ‑ ‑ ‑
HIS HONOUR: Well, you say you were rather flustered as a result of all of that. I understand that.
MR THEO: And I was recuperating from some – I do not remember what I had and I had puffing to run at the parking meter and feed the parking meter and when I came back somehow ‑ I was under the impression somehow I was scorned against and I was frowned against, if I may use another word, and Justice Callinan just was irate with my presence. So that is one of the fundamental things, but basically if we revert back to the logistics of the legalistic aspect, I was unjustifiably condemned by default.
HIS HONOUR: Thank you. Just pardon me a minute, gentlemen. Yes, I will take a short adjournment.
AT 12.13 PM SHORT ADJOURNMENT
UPON RESUMING AT 12.37 PM:
HIS HONOUR: On 19 December 2001 a Justice of this Court, Justice Callinan, dismissed applications by Mr Theo in respect of certain costs taxations. The principles governing the exercise by the Court of its powers in respect of the review of costs taxations are explained and applied by Justice Stephen in Cohuna Sewerage Authority v Flannery (1977) 14 ALR 146 and more recently by Justice Kirby in Sanders v Snell (No 2) (2000) 174 ALR 53.
Mr Theo applies for leave to appeal against the orders made by Justice Callinan on 19 December 2001. Section 27 of the Judiciary Act would require that leave be sort from the Justice who had dealt with the matter, namely, Justice Callinan. That, as is apparent, has not been obtained. However, section 16(a) of the Judiciary Act provides for any “Justice sitting in Chambers”, as I am today, to deal with the “Applications relating to the conduct of a cause or matter”.
After discussing the position with the parties when the case was called on this morning, I decided to proceed on the footing that what was before me were objections as to the competency of the applications for leave. This then resolved itself into the issue of whether there were sufficient prospects of success with any appeal to warrant the time and expense of a further application to the primary Justice for leave. In deciding the prospects of success in any appeal I have regard to the written submissions and to what was put orally this morning.
The authorities to which I have referred show that the task of the applicant, Mr Theo, in the proceeding before Justice Callinan was not an easy one. His Honour decided that there had been no error of principle by the taxation officer. His Honour dealt also with the prejudice which Mr Theo said flowed from the taxation having proceeded on 11 October 2001 in his absence. The factual questions which this involved were dealt with by his Honour. They would not attract appellate intervention. Nor did Justice Callinan err in the application of the principles respecting review by Justices of taxing decisions.
Accordingly, proceeding in the manner I have indicated, the applications for leave should be dismissed with costs, including reserved costs, and I certify for counsel.
I will now adjourn.
AT 12.40 PM THE MATTERS WERE ADJOURNED
0