Baguley v Kempsey Shire Council

[2011] HCATrans 227

[2011] HCATrans 227

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S276 of 2010

B e t w e e n -

GLENICE BAGULEY

Applicant

and

KEMPSEY SHIRE COUNCIL

Respondent

Application for reinstatement

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 25 AUGUST 2011, AT 10.10 AM

Copyright in the High Court of Australia

MR M.B. WILLIAMS, SC:   May it please your Honour, I appear for the applicant with my learned friend, MR P.R. STOCKLEY.  (instructed by Stacks ‑ The Law Firm)

MR R.S. SHELDON, SC:   May it please the Court, I appear for the respondent.  (instructed by DLA Piper Australia)

HER HONOUR:   Yes, Mr Williams.

MR WILLIAMS:   May it please your Honour, the applicant seeks to read the affidavit of Jason Paul Smith, sworn 24 June 2011.  May I inquire if you have had a opportunity in that regard ‑ ‑ ‑

HER HONOUR:   I have had an opportunity to read the affidavit, Mr Williams.  I will just ask Mr Sheldon if there is any objection to any part of it.

MR SHELDON:   There is none, your Honour.

MR WILLIAMS:   Thank you.  Your Honour, if I may attempt brevity ‑ ‑ ‑

HER HONOUR:   Mr Williams, I wonder perhaps if it might be convenient if I just ask Mr Sheldon’s attitude to the application.  Mr Sheldon?

MR SHELDON:   Your Honour, we do not wish to make any submissions on the application.

HER HONOUR:   Yes, thank you, Mr Sheldon.  Mr Williams, I do not need to hear from you.

MR WILLIAMS:   Your Honour, could I just say two things?  One, the attitude of the respondent does not go unremarked.  Secondly, I am in a position to proffer the undertaking referred to, or else it may be given in the face of the Court by he from whom it is to be supplied.

HER HONOUR:   I do not think there is any necessity for that, Mr Williams.

MR WILLIAMS:   Thank you, your Honour.

HER HONOUR:   I take it that Mr Sheldon is content with ‑ ‑ ‑

MR SHELDON:   Yes, your Honour.

HER HONOUR:   Yes.

MR WILLIAMS:   Thank you, your Honour.  Finally, I note a minor error in the summons whereby order 1 should refer to rule 41.05, not 41.06.

HER HONOUR: Thank you. The applicant claims orders in her summons filed on 11 July 2011 extending the time for filing her summary of argument and setting aside the deemed abandonment of her application for special leave. In support of that application, the affidavit of Jason Smith sworn on 24 June 2011 is read. The application for special leave to appeal is from the orders of the Court of Appeal made on 8 November 2010. The application was filed on 6 December 2010. It was deemed abandoned pursuant to rule 41.13 of the High Court Rules 2004 on 6 June 2011.

An attempt was made to file the applicant’s summary of argument and draft notice of appeal on 7 July 2011.  Annexed to the affidavit is a letter by senior counsel, then briefed on the applicant’s behalf, explaining that he had made an error in calculating the date on which time expired and otherwise explaining the personal and professional reasons for the delay in attending to the preparation of the matter.  It is against that background that the present application is brought.  Mr Sheldon, who appears on behalf of the respondent, has not sought to put any submission to the Court in opposition to the making of the orders that are claimed. 

In the circumstances set out in the affidavit, taking into account the contents of senior counsel’s letter, in my view, the appropriate course is to grant the relief that is claimed noting the undertaking made by senior counsel to pay the respondent’s costs of the application on an indemnity basis forthwith after they have been agreed or taxed.  I make the following orders:

1.That the time fixed for the filing of the applicant’s summary of argument by rule 41.5 be extended pursuant to rule 4.2 to today’s date.

2.The deemed abandonment of the application for special leave effected by operation of rule 41.13 is set aside. The undertaking set out in the summons is noted.

Is that sufficient?

MR SHELDON:   Thank you, your Honour.

MR WILLIAMS:   May it please the Court.

AT 10.18 AM THE MATTER WAS CONCLUDED