Di Carlo v Dubois
[2007] HCATrans 818
[2007] HCATrans 818
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B55 of 2007
B e t w e e n -
SALVATORE DI CARLO
Applicant
and
PHILIP JAMES DUBOIS
First Respondent
DENNIS RICHARD OSBOURNE AND PHILIP JAMES DUBOIS AND STEPHEN BENNETT KELLER AND PIYOOSH KOTECHA AND GARY EDWARD O’ROURKE AND MARK JAMES READY AND PETER STOREY AND CHARLES BRUCE LEIBOWIZ AND PETER CHARLES LUSH AND NICHOLAS DAUNT AND DAVID ALEXANDER NOBLE AND PETER FERGUS LEGH TRADING UNDER THE FIRM NAME OR STYLE OF QUEENSLAND X-RAY SERVICES
Second Respondents
MICHAEL CORONEOS
Third Respondent
Summons for Reinstatement
KIEFEL J
TRANSCRIPT OF PROCEEDINGS
AT BRISBANE ON WEDNESDAY, 19 DECEMBER 2007, AT 10.17 AM
Copyright in the High Court of Australia
__________________
MR S. DI CARLO appeared in person
MR G.A. THOMPSON, SC: I appear with my learned friend, MS S.C. HOLLAND, on behalf of the first and second respondents. The third respondent is not represented here and probably has no interest in the proceedings. (instructed by Flower & Hart Solicitors)
HER HONOUR: Is that correct, Mr Di Carlo?
MR DI CARLO: I am not certain, but he has not taken part in any of the proceedings over a long period of time. That might be a better way of putting it, I think.
HER HONOUR: Was he served with your application?
MR DI CARLO: No, not on this occasion. He was served with the Court of Appeal application but not this one.
HER HONOUR: And did not take part in the Court of Appeal proceedings?
MR DI CARLO: No, your Honour, nor a number of other proceedings before that date. I think that is correct.
HER HONOUR: I see. Your application, Mr Di Carlo, I understand that there was a little mishap in the Registry in relation to confirmation of the date, but you knew the matter was to be heard today and you have your outline of argument. You were able to put that together.
MR DI CARLO: Yes, I think that is the best way of putting it, your Honour. There was a mishap. There was some misunderstanding and as a result I got the material late, but I have not been disadvantaged if that is what your Honour is asking. I have been able to prepare it late.
HER HONOUR: Thank you. Yes, that is what I was inquiring about.
MR DI CARLO: Thank you, your Honour.
HER HONOUR: Mr Di Carlo, I suppose the essential question on your application for reinstatement is the special leave point, if there is one. You assert that there is a question of principle in your outline of argument but you do not say what it is. You have referred to section 35A of the Judiciary Act. How would you describe the question of principle?
MR DI CARLO: To some extent I have been reluctant because, as your Honour may have seen from the material, I have asked Mr Walker, SC, to consider that and frame that appropriately, so therefore I have been reluctant to flesh it out. So, in a sense, whilst unrepresented, I have sought an objective opinion from someone that is relatively well respected in the arena, other than my own possibly unobjective opinion, and was in the position of allowing him to prepare that, but in general sense I suppose I could best put ‑ ‑ ‑
HER HONOUR: I do not think you should necessarily approach an application for reinstatement on the basis that it is simply an extension of time application. The question of whether or not the matter should proceed for a consideration of special leave is really raised by the application. I think that is the approach that the Court has always taken.
MR DI CARLO: I accept what your Honour says, but I had thought not on reading the authorities that I put forward in my submissions.
HER HONOUR: I think they are related to applications for extension of time simpliciter, but the merits of the case are certainly something, even on an application for extension of time, which should be looked at. It may be that they ought not to be delved into if there is any doubt about their merit, but what is asserted against you is that the Court of Appeal decision is so clear and that the principles it applied were correct legally. So that is why I am inviting you to identify what you say is the point of principle which would give you some measure - at least prospect of success on an application for special leave.
MR DI CARLO: All right. Not abandoning my – if I could have short leave later on to address the point that your Honour initially makes.
HER HONOUR: Yes.
MR DI CARLO: My points are this, that the Court of Appeal effectively perpetuated what I say is a mistake by the primary judge in that, faced with the test or the rule that it was required to look at the face of the pleadings and not to delve into whether those pleadings can be proved, it became confused and applied a stricter test than it ought to. Effectively, if I could read what I drafted because at least to me it makes more sense when I read it.
In an application for summary dismissal of a claim the question remains the same, whether the case if hopeless or manifestly groundless, and that question does not vary according to the nature of the claim – that was as per his Honour Justice Kirby – in determining whether a claim is hopeless or manifestly groundless the court must necessarily consider the elements of a successful fraud claim as outlined in Wentworth. However, such assessment must be done on the basis that the allegations and the pleadings can be made out.
The court not only considered the allegations and the pleading but went on to consider the evidence which might prove those allegations which resulted in them acquiring a test which was stricter than required when deciding whether to summarily dismiss the claim simply because the claim was alleging fraud. This error was perpetuated by the Court of Appeal and therefore requires clarification.
Obviously from Wentworth the court must to some extent look at the elements of a successful claim to set aside a judgment upon the basis of fraud, but the failure to do it on the basis that the allegations and the pleadings can be made out from the face of the pleadings results in an application of a test – and I put for myself a question mark – perhaps a new test which is stricter than necessary. Some subtest in between the two tests of manifestly groundless and the test required in the fraud situation. Some subtest because when one looks at the decision of his Honour Chief Justice de Jersey ‑ ‑ ‑
HER HONOUR: This is in the strike‑out application?
MR DI CARLO: Yes. It seems to be a middle ground approach and there seems to be some confusion in the court as to what test actually applies and that was – it says at paragraph [5]:
Under cross‑examination, Mr Brown –
he was the radiographer –
accepted that he was first asked to provide a statement seven or eight years after the events of 1993, and that when first approached, he “remembered very little about the event”. His explanation for his subsequent, comprehensive oral evidence was that “you do remember more things as your mind is focused on a particular event”.
Then his Honour goes on to try and give explanations for why someone who is asked to remember something a second time – so he delves into it. So, in my respectful submission, where there is a general principle of law or one that needs to be clarified for the courts is that there is no middle test. If I could draw an analogy between the case of Briginshaw, the test is, as your Honour would clearly know, obviously it is something that is well within your Honour’s knowledge, the test is that it is a balance of probabilities. However, having regard to the circumstances that some rules have to be applied so that it is somewhat more clear to the court having regard to the serious nature of the allegations, so there is no new test.
In my respectful submission, in this case here there seems to have been an application of a new test or something in between the two so that the court got confused between what his Honour Justice Kirby said in the latter part of Wentworth at page 538 halfway down the page:
It is useful to state a number of principles which are established by law and which govern proceedings of the kind which the appellant wishes to bring.
The initial test at page 536:
They include the conclusion that the claim is “manifestly groundless”, and that to allow it to proceed “would involve useless expense”: General Steel . . . But the test remains the same . . . It is in determining this question that the rules devised to protect finality become relevant. The question itself, for the peremptory procedure invoked, is not altered by the nature of the claim.
What has occurred on this occasion or what has occurred and what can occur as a result of this misinterpretation, in my respectful submission, is that they apply a new test at a peremptory stage so that there are two stages which were focused on by his Honour Justice Kirby but they melted them into each other, as it were, and therefore applied a stricter test than was necessary. In my respectful submission, that confusion requires clarification or that position requires clarification by the High Court.
As I have said, your Honour, to have it addressed more eloquently and by someone that perhaps has a more objective view, I have briefed Mr Walker, but that is basically the principle. To add to that I then say this, that when one looks at the provisions of rule 41.10, unrepresented applicants, it is clear from that document there, or from the Rules, that what the High Court is endeavouring to do, or what the Rules are endeavouring to do is to filter out, even before you serve the other side, those claims that have absolutely no prospects of success.
So that there are undoubtedly cases where unrepresented litigants put in voluminous amounts of material which the courts have even thought was unnecessary to serve on the other side. So at the end of the matter, at 41.10.6:
Where no direction has been given under rule 41.10.5, the Court or a Justice shall direct the applicant to serve a copy of the written case –
on the other side. So there is no service required before that rule is effected. So it is really to some extent considered as a clearing house which does not even call upon the other side to address the issue. So, in effect, the purposes of what the High Court said in the submissions that I made earlier on is that it is a procedural step and it being a procedural step the Court ought to be very reluctant to deny a person who has some prospects of success, or unless it is completely groundless, to suggest that the Court of Appeal got it right and ‑ ‑ ‑
HER HONOUR: You would have to show that they were wrong in principle, would you not? Perhaps that is the point.
MR DI CARLO: I do not know that I have to go that far, your Honour, with respect.
HER HONOUR: Then it is, in any event, what your argument at the outset has attempted to do.
MR DI CARLO: Yes, I do not know that I can show it is wrong in principle. What I would say is I want the opportunity to try and show that and I think I ought to be entitled to that opportunity and not considered as a litigant. On the one hand my learned friend submits he is an experienced barrister, on the other hand he submits he is unrepresented and should be bound by these peremptory rules which require you not even to serve the other side and allow the court to – so if you look at the beginning of his submissions he expresses a view that I am an experienced barrister and on the other hand he then says, well, despite the fact he is an experienced barrister, he should be bound by that peremptory rule and he does not really significantly attack the principles in respect of my delay and the effective prejudice which, in my respectful submission, on the law are clearly the two points that he should be dealing with and they are the two points that I have really substantially come to address.
The first is the delay and, in my respectful submission, the delay is not significant at all, or not a significant delay, and certainly was not contumelious, although we respectfully submit it is not contumelious or contemptuous of the Court or its processes. I do not know that I need to refer your Honour to the material that was in the – but it was certainly accepted by the Court of Appeal that that was not my nature or that that was not what I was doing – I think in paragraphs [25] and [26] of the Court of Appeal decision.
HER HONOUR: There is something, however, of the history of delay in this matter in the proceedings in the Supreme Court.
MR DI CARLO: That is consistent, in my respectful submission, with the affidavit which attaches the report of Professor Middleton.
HER HONOUR: Yes, that was referred to in the Court of Appeal’s reasons.
MR DI CARLO: I think the Court of Appeal accepted that although there is a history, I think by inference they were saying we accept – because I said to them at that stage that, in fact, I was offended that they would think that it would be submitted that I would purposely do that, but there has been this natural aversion – and ultimately my submissions must have not only rung in their ears but sufficiently so for them to address such a matter within their own judgment at paragraphs [25] and [26], from recollection, to clearly stated in there that they did not think that I was in that position.
Your Honour, in my respectful submission, would not disallow – and the principal binding factor would be that there is no prejudice that could possibly occur. It is almost fundamentally unarguable that there is some sort of prejudice. They wait almost nine years to get a statement off Mr Brown knowing that there is litigation, nine years after the event, and then a year and a half after that they get a second statement and then when the fresh evidence is discovered, or the new evidence is discovered, the material which I say clearly shows that he was plainly wrong, which has not been looked at by the Court of Appeal, and now they say, “Well, a couple of months or a month in delay here will prejudice us”. That cannot be so, in my respectful submission. They have been a party to this all the way along.
The other point that I make, your Honour, with respect, is this. They say that this is just going to perpetuate and go on and on, but that is not so. This is my last go. This is my last go and to be denied my last opportunity
to endeavour, in my respectful submission, to obtain justice, something I know. One of the basic reasons, I would respectfully submit, for looking at the material on the face of the pleadings is that one never knows what is going to come out in evidence, the very same reason why you do not plead evidence in pleadings.
It might be that one of the partners of Dubois might ultimately at trial give evidence of what was actually said and what occurred to perpetuate the fraud. None of this is known at the preliminary stage and the court was wise enough to say, “Well, we look at the face of the pleadings as opposed to basically the assertions and see whether they can be made out in advance”. That is where the error was made, in my respectful submission, and his Honour even went further, the primary judge, and gave reasons why Mr Brown might have changed his version, why he might have done this, why he might have done that and, in my respectful submission, that starts to bring this test into issue, whether there is a blurring of the test because the court thinks there is something different or significantly different in respect of an act which alleges fraud. If it was so, then – I think his Honour made this statement ‑ ‑ ‑
HER HONOUR: I think you are perhaps going over the same ground.
MR DI CARLO: Yes, all right. Unless I can assist your Honour with anything further, they will be my submissions.
HER HONOUR: Thank you, Mr Di Carlo. Mr Thompson, I suppose the threshold question is whether or not it is appropriate to consider prospects of success on special leave.
MR THOMPSON: Can I address your Honour on that point?
HER HONOUR: Yes.
MR THOMPSON: Your Honour, there are two aspects of course to this application. One is to reinstate the special leave application and, necessarily, the second must be to enlarge the time. Putting aside the second, the application importantly is from a refusal of the Court of Appeal to extend time for appeal.
HER HONOUR: It is unusual, yes.
MR THOMPSON: Yes, your Honour, in that respect and it follows from that that the first and second respondents had a vested right to retain the judgment of the Chief Justice at first instance and that is the distinction which is made, in our respectful submission, in the reasons, among others ‑ ‑ ‑
HER HONOUR: The Court of Appeal dealt with two applications for extension, did it not?
MR THOMPSON: Yes, your Honour.
HER HONOUR: With respect to the application for a second appeal and bringing of a fresh action.
MR THOMPSON: Yes, your Honour, but this application for special leave is confined to the refusal to extend time for the appeal from the decision of his Honour the Chief Justice and so the point we make is that we have a vested right – and perhaps I should pass to your Honour, if your Honour pleases, a bundle of cases. I did wish to take your Honour briefly to a couple of passages. I will not delay it. Your Honour will see that the distinction is made initially in the first case which is Jackamarra at the bottom of page 519 in the joint judgment of the Chief Justice, Justice Brennan and Justice McHugh where their Honours refer to the extract from Lord Denning at about paragraph 3 and then in paragraph 4 say:
These remarks of Lord Denning were made in the context of an application for an extension of time to lodge an appeal. In that class of case, the respondent to the application has a vested right to retain the judgment –
I will come back to the footnote –
the subject of the appeal. To grant the application for an extension of time is to put at risk a vested right of the respondent. When the application for an extension of time merely concerns the doing of an act in respect of an appeal already lodged, as the present case does, an even more liberal approach is justified. The court is dealing with a pure procedural question –
but that is not the case here, in our submission.
HER HONOUR: But this is by way of entering upon the merits or the prospects of a special leave application. The threshold question is whether on an application for reinstatement it is appropriate for a single judge, except in the most blatantly clear of cases, to refuse reinstatement on the basis of merit or whether the matter ought to proceed to a consideration on the papers, as is the case with respect to unrepresented litigants by two Justices.
MR THOMPSON: Yes, your Honour, I understand the point your Honour makes. The submission we make is that because it is unusual in the sense that it does involve putting at risk a vested right, that it is appropriate for your Honour to consider the merits of the case.
HER HONOUR: But the question really is, what is the nature of an application for reinstatement? I mean, it does not automatically take you into the merits, does it?
MR THOMPSON: No, it does not, your Honour, but the status of the special leave application is now that it has been abandoned, so there is no special leave application, so that we still stand with a vested right in relation to the judgment given by the Chief Justice because no extension was ever given for an appeal in relation to that. We have not been able to find an authority which is directly on the point but we would invite your Honour to approach it therefore on the basis that if you are looking to reinstate an application against a background of the respondents having that vested right in the judgment, one should approach it by reference to the principles referred to in Gallo v Dawson, which is the case referred to in footnote (27), the judgment of his Honour Justice McHugh which is in our bundle and in particular the passage that appears on page 459 in the left‑hand column beginning about 10 lines from the bottom where his Honour says:
When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.
That is the passage which we would emphasise to your Honour. If we go back quickly to Jackamarra what we see is in the first two lines on page 520 the Chief Justice and Mr Justice McHugh saying:
To grant the application for an extension of time is to put at risk –
So this is to put at risk a vested right which we say we have in the judgment of the Chief Justice. That is the basis upon which we would say your Honour would consider the merits. Not only is the applicant unable to articulate before your Honour today the question to be raised on the special leave application, but there is no material before your Honour, nor was there material before the Court of Appeal which was exercising that discretion against a background of, as I say, a vested right, upon which it could be concluded that to refuse the application would constitute an injustice.
When one goes to the question of the merits – your Honour, I have not formally read the affidavit of Mr Sivyer, which was filed I believe on 14 December, if I could do that - your Honour will see that – and I only propose to take your Honour briefly to the pleading – your Honour will see that the pleading is utterly devoid of any merit because it is completely devoid of proper articulation of a claim in fraud or the particularisation of that. Indeed, it is factually flawed because it depends on a sequence which on the further and better particulars is not one which existed. I assume your Honour has seen what the Court of Appeal has said about it.
HER HONOUR: Yes, I have.
MR THOMPSON: The essential proposition was that having made an inquiry on behalf of the respondents about the existence of the CT scans it was considered then safe to have Mr Brown make a second statement. In fact, the inquiries about the CT scans occurred after that. So the entire foundation of the statement of claim fails. When particulars are requested about the conduct alleged to have involved suborning the witness, no particulars whatsoever were provided in relation to that beyond simply saying that is something which we will have to investigate in due course.
On any view of the cases, and we do not accept, of course, that there is a distinction between what was said by his Honour Chief Justice Barwick in General Steel and the test which was applied, for example, in Wentworth, but on any view of those tests this is a manifestly hopeless case. I am not sure whether I have precisely addressed the point that your Honour raised with me.
HER HONOUR: I think you have.
MR THOMPSON: Can I simply conclude it this way. There is no basis really when one comes to consider a special leave application in this case to conclude that the Court of Appeal exercising a discretion in relation to the extension of time did so in a way which bespeaks an error of principle.
If I can then mention briefly the question of prejudice and of course I do not confine the question of prejudice to prejudice in terms of costs, but also there is the prejudice to the respondents in terms of time and the general burden of litigation, the kind of prejudices Justice Kirby in Jackamarra referred to, but here this is ongoing litigation intended to impugn a judgment which was properly obtained when the applicants had an opportunity to go to the Court of Appeal and go on special leave to the High Court on one occasion already.
There are unpaid taxed costs in the order of $185,000, further costs incurred since that first special leave application aggregate a figure in excess of $100,000 in the form of various untaxed costs orders. Mr Di Carlo has entered into a Part X arrangement under the Bankruptcy Act and there is currently a creditors’ petition pending and Mr Sivyer’s affidavit deposes to researches which he has undertaken indicating that there are no assets apparently in the form of real property at least in Mr Di Carlo’s name. So there is no practical likelihood of my clients receiving payment of those costs.
So if your Honour is against us in terms of the reinstatement application, we would invite your Honour to take the course which was taken by the Chief Justice, Justice Gleeson in two matters which are included in our bundle. The first is the case of Bradshaw v Bradshaw [2004] HCATrans 115, 6 April 2004. Does your Honour have that?
HER HONOUR: Yes, I do.
MR THOMPSON: If your Honour starts at the exchange between Mr Knaggs and his Honour the Chief Justice. On the first page on the right‑hand side there is an ongoing exchange which results ultimately in his Honour reinstating the application but on two conditions. The first condition was that the applicant for reinstatement not only be ordered to pay the costs but in fact pay the costs before the proceeding was reinstated of the application for reinstatement. The second was an order that there be an expedited hearing of the special leave application. We certainly would most strongly stress or urge your Honour to consider the first of those conditions. The orders finally made by the Chief Justice appear on the fifth page where, about two‑thirds of the way down, his Honour says:
Yes, certainly. Mr Knaggs, in relation to the matter of costs, I have said that it seems to me as a matter of principle that the respondent should not be out of pocket as a result of having been brought along here to have to deal with these applications.
Then he deals with the conditions at the bottom of that page and on to the next page. To a similar effect, your Honour, is the decision for the application in the matter of Malouf & Anor v Sterling Estates Development Corporation, which is in our bundle, and if I can take your Honour to page 6 of that transcript in the last extensive passage by his Honour – this was a case in which there was some psychiatric condition on the part of Mr Malouf, but in the second paragraph his Honour says:
The applicants must pay the costs of the respondent of this application, such costs to be agreed or, in default of agreement, to be assessed. If the parties are unable to reach agreement on the amount of the costs within seven days of today, there is to be an expedited assessment of the costs by the Registry. It is on condition that the costs agreed or assessed are actually paid by the applicants to the respondent that the matter is reinstated.
Again, there is an order for expedition.
HER HONOUR: But that was for a hearing.
MR THOMPSON: Yes, your Honour.
HER HONOUR: You are not pursuing that because this would be determined on the papers.
MR THOMPSON: We would expect that it would be determined ‑ ‑ ‑
HER HONOUR: In the usual course.
MR THOMPSON: Yes, your Honour. Without finally giving up the bone on your Honour not reinstating it, can I say this. This, unlike other cases, is not a case where the delay should not be sheeted home to Mr Di Carlo and there is an extensive history of delays and, indeed, material was provided to us yesterday afternoon with written submissions which, according to the directions we received from the Court, were due to be provided to us on the 14th, Friday, when ours were provided.
Mr Di Carlo in his affidavit accepts expressly that he was put on notice by the High Court Registry of his obligation to file a written case and a draft notice of appeal. He cannot say that he was unaware of the time limit. He has given no adequate or acceptable explanation at all, in our respectful submission, to the Court for his delay and he has not still provided the Court with a written case or draft notice of appeal and he is unable to articulate before your Honour what principle it is which he asserts would enliven an application for special leave. Those are our submissions, if it please your Honour.
HER HONOUR: Thank you. Mr Di Carlo, the only matter I think I need to hear from you in connection with is the application for indemnity costs as a condition of reinstatement and the payment of those indemnity costs.
MR DI CARLO: Thank you, your Honour. To address that, can I necessarily just address one point that my learned friend made and that is that he argues that they have a vested interest. The vested interest is necessarily somewhat limited, in my respectful submission, as having a vested interest but not ‑ ‑ ‑
HER HONOUR: I do not want to hear from you in relation to the merits. I propose to reinstate the application. The question is whether or not reinstatement should be upon the conditions to which Mr Thompson has referred.
MR DI CARLO: Thank you, your Honour. The point I wanted to make there was that in having a vested interest, that vested interest does not vest or change the test to one on merits or significantly on merits.
HER HONOUR: Mr Di Carlo, would you please just address yourself to the point. I do not need to hear from you in relation to whether the application should be reinstated. I propose to make that order. The question is whether I condition reinstatement on the terms to which Mr Thompson has referred, namely, the payment of indemnity costs within a short period of time.
MR DI CARLO: Thank you, your Honour. My point is based on this. The substantive part of their argument is on merit. If one looks at the whole of their argument, the substantive part is on merit. When one looks at regulation 41.10.1 it is easily seen that it is really a case where the Court filters the situation. So substantially, in my respectful submission, what ought to have been concentrated, if they needed to appear at all, and I make that statement, let alone appear by senior counsel, junior counsel and solicitor in a situation such as this as against an unrepresented litigant, allegedly an experienced barrister, the fact is that when one looks at 41 properly, normally this would have been done by the Court in the absence of my learned friends let alone such an esteemed team. Taking that aside, this has been previously attempted by my learned friends in the Court of Appeal where the President, Justice McMurdo ‑ ‑ ‑
HER HONOUR: Mr Di Carlo, would you please attend to the question about whether the order for reinstatement should be conditioned. What do you say about that?
MR DI CARLO: I would respectfully submit not, your Honour. It is akin to a previous application they made and this is a submission I made at that application. As a general rule, an order will not be made in the absence of exceptional factors against an impecunious individual litigant within the jurisdiction, Harpur v Ariadne Australia and Schokman v Hogg.
HER HONOUR: Is that a security for costs cases?
MR DI CARLO: Yes. I ask your Honour to draw an analogy between that, because they had made an application previously and were unsuccessful before the Court of Appeal in obtaining security for costs against me. This should be analogous to that. Your Honour, the point in respect of costs is that it dissuades an individual like me in pursuing this matter which is going to go before two Justices should your Honour rule in my favour, which I think your Honour has intimated, to rule on the papers.
The enormous amount of effort or what appears to be an enormous amount of effort on arguing the merits of the case, in my respectful submission, would create a situation where this is going to be blown out. It is going to take some time to assessment and it would apply pressure to me to pay whatever was assessed in order to get this right of being able to produce it. In my respectful submission, to order costs on an indemnity basis would be a punitive measure in circumstances where, in my respectful submission, there was never a hopeless case.
In this application the appeal was filed in time, the procedures were not followed, and I concede that. I apologise to my learned friends because the material was not received last night but, as your Honour noted, there was a glitch in the system there.
HER HONOUR: I think Mr Thompson’s application for conditions is really based upon the history of this matter and the fact that there have been a series of delays noted by the Court of Appeal in its reasons.
MR DI CARLO: Your Honour, I certainly do not argue against conditions being put in respect to directions as to what should take place to expedite the matter in a formal sense. The sooner it is resolved the better. It is just that to award costs in a situation like this would be so burdensome. My learned friend says that there is a Part X. I have no other creditor except – and I put that in inverted commas – should I be unsuccessful, Flower & Hart or UMP. There is no other creditor except them at all.
So if I am successful in this case here – and my impecunious situation has previously been assessed by the Court of Appeal when they were determining the security for costs and they cross‑examined me on that particular situation and the court did not give them security for costs - in my respectful submission, to place that significant burden on me when this was a procedural step and ought to have been seen as such by experienced solicitors, in effect requiring me to come to the court and satisfy the court ‑ ‑ ‑
HER HONOUR: I think you are reversing the onus somehow.
MR DI CARLO: Perhaps trying to. I do not know that I am succeeding, your Honour.
HER HONOUR: There is some strength in the argument that the merits of this case might be looked at. The question, as I have suggested to Mr Thompson, though is whether or not it is of such a kind that two Justices should look at it rather than one.
MR DI CARLO: Yes, I think that was what your Honour had said and I accept that that is the case.
HER HONOUR: Thank you, Mr Di Carlo.
MR DI CARLO: I do not know that I can assist any further. I would respectfully submit that costs ought not be ordered in a situation such as this.
HER HONOUR: Thank you.
There will be orders that the application is reinstated on condition that the applicant pay the costs of the first and second respondents on an indemnity basis, such cost to be paid within seven days of the assessment of those costs. I direct that the assessment be expedited by the Registry but taking into account the closure of the Registry for a short period.
Yes, thank you. There will be orders in those terms.
MR DI CARLO: Your Honour, can I seek one clarification? That is purely costs of this appearance today?
HER HONOUR: Of this application.
MR DI CARLO: Thank you, your Honour.
HER HONOUR: Thank you.
AT 10.57 AM THE MATTER WAS CONCLUDED
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