Battison v Battison & Anor

[2015] HCATrans 139

[2015] HCATrans 139

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S49 of 2015

B e t w e e n -

BATTISON

Applicant

and

BATTISON

First Respondent

INDEPENDENT CHILDREN’S LAWYERS

Second Respondent

Application for reinstatement

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 4 JUNE 2015, AT 9.42 AM

Copyright in the High Court of Australia

MR BATTISON appeared in person.

MS E.M. PICKER:   May it please the Court, I appear for the first respondent.  (instructed by McNeilly Lawyers)

MAIDA VUGDALIC affirmed as interpreter.

HER HONOUR:   I note that the second respondent, the Independent Children’s Lawyer, has not filed an appearance or a submitting appearance.

MS PICKER:   That is my understanding too, your Honour.  I do know that both respondents are legally aided and I do not have any instructions in relation to the Independent Children’s Lawyer that would assist.

HER HONOUR:   Yes, very well.  Thank you, Ms Picker.  Now, Ms Picker, perhaps I might direct some inquiries of you initially.  Ms Picker, this is an application for reinstatement of the application for special leave to appeal that was filed on 23 March 2015.  The application was deemed abandoned for the failure to comply with the Rules relating to the filing of the written case and other documents.

MS PICKER:   That is so.

HER HONOUR:   The default is by a period of one day it would seem.

MS PICKER:   It is, your Honour.

HER HONOUR:   In those circumstances, Ms Picker, my inclination, subject to anything you want to put to me would be to grant the relief, given that there is an explanation offered for that relatively minor default.

MS PICKER:   Yes, your Honour.  The High Court did serve a copy of the summons and the affidavit of the applicant in relation to his reasons for the delay.

HER HONOUR:   Yes.

MS PICKER:   There was no application ever served on the respondent pursuant to the Rules.  The High Court has notified my instructing solicitor that there had been an application filed.  In relation to the one day, pursuant

to Gallo v Dawson and all the practice and procedure in appellate courts, the one day is not opposed.

HER HONOUR:   Yes.

MS PICKER:   It is more the merit of the application.  The respondent has not had an opportunity to read any of the material because of rule 41 where an unrepresented litigant does not have to provide it.  I am unsure, your Honour, what the view of the Court is in relation to the material or if the submissions have even been filed.

HER HONOUR:   In the ordinary course, as you would know, Ms Picker, an application for special leave filed by an unrepresented applicant is dealt with in accordance with the Rules.  It may be referred to a panel of Justices who may either direct that it be served on the respondent or may dismiss the application.

MS PICKER:   Yes, your Honour.

HER HONOUR:   Given that there is an explanation offered by the applicant for his failure to comply, my thinking had been that it would be reasonable for him to have the opportunity for his application to be dealt with in the usual way in the event that the Court were to consider that a direction should be given for it to be served on those for whom you appear and listed for oral argument.  It would follow that course or it may be dealt with under the Rules.

MS PICKER:   Yes, your Honour, I understand that.  That was my understanding of the Rules and the procedure and the opposition to the application is not a vigorous opposition at all.

HER HONOUR:   I understand.  Yes, very well.  Now, Mr Battison, you are applying for reinstatement of your application for special leave to appeal?

MR BATTISON (through interpreter):   Yes, that is correct.

HER HONOUR:   You rely on the affidavit that you swore on 21 April of this year setting out the reasons why you failed to comply with the Court Rules?

MR BATTISON (through interpreter):   Yes, it is completely true.  The reason I could not make it because of the weather and I had a little baby which I had to look after because my wife was ill.

HER HONOUR:   Yes.  Now, in the event that I make an order reinstating the application, have you now prepared your written case and do you have the other documents ready to file in order to comply with the Court’s Rules?

MR BATTISON (through interpreter):   Yes, I believe I have all I need.  The Form 24 – Form 24 and a summary of argument document.

HER HONOUR:   Well, now, Mr Battison, because you failed to comply with the Court’s Rules it has been necessary for you to bring this application and you are seeking an indulgence from the Court, which I am disposed to allow.

MR BATTISON:   Thank you very much.

HER HONOUR:   Ms Picker, do you seek your costs?

MS PICKER:   Yes, your Honour.

HER HONOUR:   While you have succeeded in persuading me that you should have your application reinstated, because you have sought this indulgence and the respondent to your application has had to attend Court, my inclination would be to make an order that you pay the respondent’s costs of your application.  Is there anything you want to say about that?

MR BATTISON (through interpreter):   I am willing to pay.  I will not refuse but please if you can give me a chance maybe to pay actually because I am in very difficult financial situation.

HER HONOUR:   Thank you.  There is a further matter which is that it is not clear that you have served an affidavit of service in relation to the second respondent.

MR BATTISON (through interpreter):   I did not know.  I thought that I did all I had to.  I sent all documents which I had to – I do not know about the ‑ ‑ ‑

HER HONOUR:   Well, it will be necessary for the application to be filed on the second respondent, the Independent Children’s Lawyer.

MR BATTISON (through interpreter):   I am not too sure but I know that I sent all documents by registered mail.

HER HONOUR:   I do not intend to engage in giving Mr Battison advice, but it will be necessary for him to attend to due service on the second respondent of his application.  I propose directing that Mr Battison is to file his written case and the documents that are required under rule 41.10 of the

High Court Rules within seven days of today’s date.  That is feasible as I understand that.  Can you confirm that with Mr Battison?

MR BATTISON (through interpreter):   Yes, yes, sure.  Thank you.

HER HONOUR:   The applicant filed an application for special leave to appeal from the orders of the Full Court of the Family Court of Australia made on 17 February 2015.  The application was filed on 23 March 2015.  The applicant is unrepresented and was required to file his written case, draft notice of appeal and other documents within 28 days of the filing of the application.  This he failed to do and his application was deemed to be abandoned pursuant to rule 41.10.4.1 of the High Court Rules. 

The applicant filed a summons claiming an order for reinstatement of his application the following day.  He has provided a satisfactory explanation for his failure to comply with the Rules.  Ms Picker, who appears on behalf of the first respondent, opposes the application.  The basis of her opposition is the absence of arguable prospects of success, and for that reason, the lack of utility in reinstatement of the application.

Given the modest departure from compliance with the Rules, the interests of justice favour reinstatement of the application so that it might be considered on its merits by a Full Court in accordance with the provisions of the Rules governing applications for the grant of special leave made by unrepresented applicants.  The order sought is an indulgence and carries with it a costs consequence.

For these reasons, I make the following orders:

1.Application S49 of 2015 is reinstated. 

2.The applicant is to pay the first respondent’s costs of the application. 

3.The applicant is to comply with the requirements of rule 41.10 with respect to the filing of documents within seven days of today’s date.

Yes, thank you.

MR BATTISON:   Thank you very much.

HER HONOUR:   Thank you, Ms Picker.

AT 9.58 AM THE MATTER WAS ADJOURNED