Burke v Yurilla S.A. Pty Ltd - [1993] HCATrans 245

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No Al6 of 1992
B e t w e e n -
PHILIP DAMIAN BURKE

Applicant

and
YURILLA S.A. PTY LTD; THE
CORPORATION OF THE CITY OF
MITCHAM; D.R. & S.L. DOBIE;
W. & M.E. ADCOCK; W. & J.M.
DIGBY; V.J. PHILP; R.G. & J.A.
CHILDS; A. & A.W. MAROS;
J.A. & J.M. JENKINS; J. & A.
ARCHONDAKIS and N.L. FAZZALARI

Respondents

Application for special leave
to appeal

Burke

26/8/93

DAWSON J TOOHEY J McHUGH J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 26 AUGUST 1993, AT 12.19 PM

DAWSON J:

Mr Burke, you appear in person, do you?

MR P.O. BURKE:

Yes, Your Honour.

Of course, in the first

place I seek leave to make that presentation.

DAWSON J: In seeking leave, you may put the arguments that

you want to put on the matter of substance.

DR R.J. BAXTER:

May it please the Court, I appear for the

respondents. (instructed by Finlaysons)

DAWSON J: Yes, Mr Burke.

MR BURKE:

So as I understand Your Honour, you will

reserve -

DAWSON J:

You are seeking leave to appear in person but, in

seeking leave, you can tell us what the arguments
are that you want to put on the matter of

substance. You need an extension of time, do you?

MR BURKE:	I also need an extension of time, Your Honour.
DAWSON J:	Very well. You can address all those matters.
MR BURKE:	As far as the extension of time is concerned, the point has been made in the outline of the opposition that there is no good reason been put
forward why this matter should be distinguished or
put behind the other matters.
DAWSON J:	Perhaps we could ask the other side. Mr Baxter,

do you oppose an extension of time?

MR BAXTER:	We do, Your Honour.
MR BURKE:	The reason for that is that knowing that I could

not put on the application in time I inquired and
for reasons which I think I understand, I was told
that the Registry could not accept an application
for an extension of time, there being no

originating document. The reason why that had to
take second place was because nobody is paying me

to act for myself in this matter. I was forced
into acting for myself, as the affidavit, which is
the first item in this small additional book, sets out. Over a period of·years my problems in trying
to obtain legal representation went over a number
of years and then my efforts with a number of firms
of solicitors and my efforts to remedy that are
also outlined in that affidavit, which is pages 1
to 11 of that additional book.

McHUGH J:	It is a very long period of time, Mr ·Burke.
MR BURKE:	Yes, Your Honour.

Burke

26/8/93

McHUGH J: It is almost a year.

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: [1993] HCATrans 245
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Mr P.O. Burke, appeared in person and sought an extension of time to file his application. The respondents, Yurilla S.A. Pty Ltd and others, were represented by counsel and opposed the extension of time.

The primary legal issues before the Court were whether to grant Mr Burke an extension of time to file his application for special leave and, in conjunction with that, whether to grant him leave to appear in person. Mr Burke also indicated that he wished to argue the substantive grounds of his intended appeal, which concerned a restrictive covenant forming part of a building scheme.

Mr Burke sought an extension of time due to difficulties in obtaining legal representation and the fact that he was acting in person without remuneration. He explained that he had been involved in continuous legal proceedings for over eight years, which had prevented him from attending to this matter sooner. The respondents opposed the extension of time.

The Court considered Mr Burke's submissions regarding his need for an extension of time and his request to appear in person. The transcript indicates that the Court was in the process of hearing arguments on these preliminary matters.

Orders