Badcock v Pirir Street Holdings Limited

[2011] HCATrans 172

[2011] HCATrans 172

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A15 of 2010
  No A16 of 2010

B e t w e e n -

ROBERT JOHN BADCOCK

Applicant

and

PIRIE STREET HOLDINGS LIMITED (ACN 061 461 550) (FORMERLY ADELAIDE BANK LIMITED)

First Respondent

BENDIGO AND ADELAIDE BANK LIMITED (ACN 068 049 178)

Second Respondent

Summons

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON WEDNESDAY, 15 JUNE 2011, AT 9.32 AM

Copyright in the High Court of Australia

MR R.J. BADCOCK, appeared in person.

MR A.G.J. ROBERTSON:   May it please the Court, I appear with MR V. FRAGOS for the respondents.  (instructed by Piper Alderman Lawyers)

HER HONOUR:   Yes, Mr Badcock.

MR BADCOCK:   Thank you, your Honour.  Your Honour, this is my application by way of summons for an extension of time within which to file a statement of argument of the appellant in the two matters.

HER HONOUR:   Yes, very well. 

MR BADCOCK:   Your Honour, just by way of an explanation of the papers, the appellant is appealing to the High Court in relation to two decisions of the Federal Court.  There is an affidavit in support of the summons which includes an annexure, that being a summary of argument that was sought to be filed by myself on 20 August 2010.  The affidavit is self‑explanatory as to what occurred on that day and the application merely seeks an extension of time, in actual fact, of course, because the summary of argument has been exhibited by way of the annexure – technically it has been filed – just to evidence compliance, your Honour.

HER HONOUR:   Yes.  As I understand the papers, the extension you are seeking is for 14 days from today’s date?

MR BADCOCK:   Correct, your Honour.

HER HONOUR:   Yes, thank you. 

MR BADCOCK:   Thank you.

HER HONOUR:   I will hear from the respondent.

MR ROBERTSON:   Thank you, your Honour.  We were opposing the extension on the basis that the applicant has not ordered his affairs such that he was in a position to comply with the court orders which made clear to him at the time that he would have initially filed the material as to the timetable which he needs to apply.  The explanation for the delay in the affidavit does not explain why it was that Mr Badcock felt it was necessary for an affidavit to be filed.  It appears the documents that he was attempting to file, and still attempts to file, in relation to his outline of his argument are not in accordance with the rule itself in terms of both the brevity required and the type of material that is required and there was no need, therefore,

for Mr Badcock to have a Justice of the Peace on the day on which he says he attended.  For those reasons, we would ask for the Court to dismiss the matter.

HER HONOUR:   Yes, thank you.  Anything in reply, Mr Badcock?

MR BADCOCK:   Your Honour, the summary of argument that was sought to be filed was a continuance of the application for special leave to appeal.  In seeking leave to appeal, that application was filed within time, within the appeal period, therefore it is, in our view, a minor glitch or technicality that we are talking literally the final date that that summary of argument was technically meant to have been filed and, hence, our application seeks to extend that.  The reason for the affidavit material, your Honour, is clearly to put a case on oath that there were genuine circumstances in addition to the merits of the appeal that we are seeking to have heard.  Those would be my submissions, your Honour.

HER HONOUR:   Thank you very much. 

There are two summonses dated 31 August 2010 returnable today in matters numbered A15 and A16 of 2010.  In each matter an extension of time of 14 days is sought within which to file a summary of argument and affidavits in support of applications for special leave to appeal.  In each case the applications for special leave to appeal were filed on 23 July 2010. 

In affidavits filed in each matter on 31 August 2010, the applicant states that he attempted to file documents on 20 August 2010, however, there was no Justice of the Peace available at the Adelaide Registry to witness his affidavits, and by the time he returned with sworn affidavits, the Registry was closed.  When he again attempted to file these documents on 23 August 2010, the Registry refused them on the ground that they were out of time. 

The respondents appeared today to oppose any order for an extension of time on the basis that the material to be filed lacked brevity.  That may assume some significance once the initial steps in the proceedings have been completed; however, in all the circumstances, it is appropriate to grant the relatively short extensions of time sought.  Accordingly, in each matter I order:

1.The plaintiff be granted an extension of time of 14 days from the date of this order within which to file and serve the summary of argument of the plaintiff dated 20 August 2010.

2.The plaintiff be granted an extension of time of 14 days from the date of this order within which to file and serve affidavits of the plaintiff sworn on 20 August 2010.

Should costs be reserved?

MR ROBERTSON:   I would ask for costs to be reserved and answers depending on the termination of the actual ‑ ‑ ‑

HER HONOUR:   Thank you for that indication.  The third order I will make is:

3.Costs of today be reserved.

Thank you.

AT 9.39 AM THE MATTERS WERE CONCLUDED