Civil Properties Pty Ltd v Miluc Pty Ltd

[2012] HCATrans 74

[2012] HCATrans 074

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P49 of 2011

B e t w e e n -

CIVIL PROPERTIES PTY LTD

Applicant

and

MILUC PTY LTD

Respondent

Summons for reinstatement

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 20 MARCH 2012, AT 9.33 AM

Copyright in the High Court of Australia

HIS HONOUR:   Yes.  Now, Mr McKellar, you are a director of the applicant?

MR McKELLAR:   Yes, sir.

MR W.G. SPYKER:   If it please the Court, I appear for the respondent.  (instructed by Cornerstone Legal)

HIS HONOUR:   Well, all we are dealing with this morning is a summons for reinstatement of the application for special leave.  As I understand it, the reason that the application was deemed abandoned was because of your failure to file a written argument within 28 days in accordance with the requirements of the rules.

MR McKELLAR:   Yes, sir. 

HIS HONOUR:   Now, you filed a written argument or proposed written argument and notice of appeal.

MR McKELLAR:   Yes, and I have run that past the Registrar for a check and I have filed that as an affidavit in support of this application to be allowed.

HIS HONOUR:   I have read that material.

MR McKELLAR:   Thank you.

HIS HONOUR:   Well, Mr Spyker, what do you have to say about this?

MR SPYKER:   Your Honour, the application is opposed and in exercising your Honour’s discretion we would say a number of factors should be taken into account.  One is that the rule for unrepresented applicants is obviously a stringent one and in this case the matters to be looked at really are the reasons for the delay and really also that the applicant is unrepresented by choice - in a sense, that he has been represented in the courts below but now has decided to self‑represent.  That is the first factor, I think, that we would ask your Honour to take into account. 

Secondly, there has been a delay of about another month in bringing this application until 15 December.  It is obviously in the interests of the respondent to have finality in these proceedings and even on a corporate litigant, such as my client, there is always some strain to ongoing litigation.  The last factor, your Honour, is to look at the merits of the application itself. 

In our submission, that is one of the matters in your Honour’s discretion that there is really no point in resuscitating a case that has no reasonable prospects of success and we would say that if your Honour would look at the draft notice of appeal and the case that is before you it really does not address the matters that were raised in the courts below and we would say that the matter really has no reasonable prospects of success.  We have a unanimous decision of the Court of Appeal.  It deals with a State planning legislation and, your Honour, really the draft appeal grounds gathered in that is that they simply do not appear from the evidence or from the decisions of the courts below. 

HIS HONOUR:   Well, it seems to me, Mr Spyker, that – I know this is said to be about the construction and application of section 159 of the Planning and Development Act in relation to contributions, but the question of the merits of the application for special leave which itself would still require an extension of time - I am just dealing with the question of reinstatement at the moment, not the question of the extension of time - that would be argued together with the substantive application for special leave, assuming it goes to oral argument.  It would be a matter for the Court to decide whether it goes to oral argument or is dealt with on the papers. 

So I would make no comment today upon the merits of the application for special leave or of the application for extension of time, but the deemed abandonment issue seems really to have arisen largely out of a failure to format the written case as required by the rules.  There is also requirement that, I think, two additional copies of the written case and the notice of appeal be filed under the provision of the rules.  So it seems to me there is probably – that there is no reason why reinstatement should not be ordered in this case.  It has been a technical failure, if you like, on the part of the applicant and to reinstate it involves no comment one way or the other on the merits. 

MR SPYKER:   Very well, your Honour.

HIS HONOUR:   Yes, all right.  Now, Mr McKellar, I am going to give you 14 days to file your written case and draft notice of appeal, together with two additional copies of each, and reinstate your application for special leave.  What do you say about the costs of today?

MR McKELLAR:   I would accept costs, sir.  I think that is an appropriate order. 

HIS HONOUR:   All right, it is your fault that he is here.

MR McKELLAR:   Yes, I accept that unreservedly, sir.

HIS HONOUR:   You obviously are not going to complain about that, Mr Spyker.

MR SPYKER:   No, your Honour. 

HIS HONOUR:   Well, just let me formulate an order.  So the first order will be the applicant file and serve his written case and draft notice of appeal, together with two additional copies of each, within 14 days of today’s date – sorry, upon that condition.  (1) Upon the condition that the applicant file and serve his written case and draft notice of appeal, together with two additional copies of each within 14 days of today’s date the Court orders that (2) the application for special leave to appeal be reinstated; (3) the costs of today be the respondent’s costs in any event.

MR McKELLAR:   The applicant’s costs?

HIS HONOUR:   No, the respondent’s costs.  In other words, you have to pay the respondent.  Now, when you do file your written case, Mr McKellar, to avoid any problems make sure you sign it.  It has to be a signed written case.

MR McKELLAR:   Yes, sir.

HIS HONOUR:   I would not wait 14 days.  I would get on with it.  Thank you.  The Court will now adjourn.

AT 9.40 AM THE MATTER WAS CONCLUDED