Bonney v Compass Group (Australia) Pty Ltd

[2016] HCATrans 178

[2016] HCATrans 178

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P55 of 2015

B e t w e e n -

JENNIFER BONNEY

Applicant

and

COMPASS GROUP (AUSTRALIA) PTY LTD

Respondent

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 3 AUGUST 2016, AT 9.29 AM

Copyright in the High Court of Australia

HIS HONOUR:   This is an application pursuant to r 41.10.1 of the High Court Rules 2004 (Cth) that the applicant’s application for special leave to appeal from a decision of the Court of Appeal of the Supreme Court of Western Australia shall not be taken to have been abandoned by reason of the applicant’s failure to comply with the requirement in r 41.10.3(c) as relevantly in force prior to its amendment from 1 July 2016.

The applicant filed her application for special leave to appeal on 3 December 2015 and was required by r 41.10.3(c) to file and serve a written case and draft notice of appeal by 4 January 2016.  She was advised of that requirement by letter from the Deputy Registrar dated 4 December 2015. 

The applicant failed to file and serve a written case and draft notice of appeal by 4 January 2016, or at all, and by letter dated 7 January 2016 she was advised by the Deputy Registrar that as a consequence of her failure to comply with the relevant provisions of r 41, her application for special leave was deemed to have been abandoned.

On 27 June 2016, the applicant filed a summons seeking orders that her application for special leave be reinstated and further time in which to file a draft notice of appeal and written case. 

The power of the Court to order that an application for special leave not be taken to be abandoned is given for the purpose of enabling the Court to do justice between the parties (Gallo v Dawson (1990) 64 ALJR 458 at 459 per McHugh J). As with other forms of application for extension of time, the relevant considerations include the history of the matter, the conduct of the parties, the nature of the litigation and the consequence for the parties of a refusal of an extension (Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470 at 474 [15] per McHugh J). The four main factors are the length of the delay, the reason for the delay, whether there is an arguable case and the extent of any prejudice suffered by the respondent by reason of the delay (Jackamarra v Krakouer (1998) 195 CLR 516 at 519 - 520 [4] and 522 [9] per Brennan CJ and McHugh J, 532 [42] per Gummow and Hayne JJ).

Ultimately, the overarching question is whether it would be just in all the circumstances to grant or refuse the application (Jackamarra v Krakouer (1998) 195 CLR 516 at 539 – 540 [66] per Kirby J). Where, however, there has been extended delay it is also incumbent upon an applicant to demonstrate exceptional circumstances (Jeffers v The Queen (1993) 67 ALJR 288 at 289 per Deane, Dawson and Toohey JJ).

In this case the delay is considerable.  In an appeal regime which requires an applicant to file a draft notice of appeal within 28 days, a delay of more than five months is inordinate.  There is also no satisfactory explanation for the delay.  The only reason offered in the applicant’s affidavit in support of her summons is that:  “The applicant was unable to file the summary of argument and draft notice of appeal by 4 January 2016 due to family reasons over the Christmas and New Year period.  The applicant has continued to attend to important family matters over the last five months.” 

Significant family problems such as illness or bereavement can sometimes amount to an acceptable reason for delay (Friend v Laidley Shire Council [1998] 9 Leg Rep SL1 per Kirby and Callinan JJ).  But it is not apparent that the “important family matters” asserted in this case go even close to a tragedy of those proportions. 

Ultimately, however, what is determinative in this case is that it does not appear that there is an arguable case for appeal.  There is no reason to doubt the correctness of the reasons for judgment of the Court of Appeal or therefore to suppose that any of the applicant’s proposed grounds of appeal would enjoy a perceptible prospect of success.  To the contrary, the prospects of the applicant being granted special leave to appeal are such that an order for extension of time would be futile. 

In the result the application is dismissed.

Adjourn now.

AT 9.34 AM THE MATTER WAS CONCLUDED