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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] HCATrans 178
Decision Date

CaseChat Overview and Summary

This matter concerned an application by the applicant, Bonney, to the High Court of Australia pursuant to rule 41.10.1 of the High Court Rules 2004 (Cth). The applicant sought to prevent her application for special leave to appeal from a decision of the Court of Appeal of the Supreme Court of Western Australia from being taken as abandoned due to her failure to comply with procedural requirements. Compass Group (Australia) Pty Ltd was the respondent.

The primary legal issue before the High Court was whether it was just to grant the applicant's application to reinstate her special leave application and extend the time for filing a written case and draft notice of appeal. This required the Court to consider the principles governing extensions of time and the circumstances under which an application for special leave, which has been deemed abandoned due to non-compliance, should be reinstated.

The Court applied established principles for granting extensions of time, which involve considering the length of the delay, the reason for the delay, the existence of an arguable case, and the prejudice to the respondent. The Court noted that in cases of extended delay, exceptional circumstances must be demonstrated. Here, the delay of over five months was considered inordinate, and the explanation provided – "family reasons over the Christmas and New Year period" and continued attendance to "important family matters" – was found to be unsatisfactory, not amounting to exceptional circumstances such as serious illness or bereavement. Crucially, the Court found that there was no arguable case for appeal, as there was no reason to doubt the correctness of the Court of Appeal's decision.

Consequently, the High Court dismissed the applicant's application, finding that granting an extension of time would be futile given the lack of an arguable case.

Orders