Fitzgerald v F.J. Leonhardt Pty Ltd

[1996] HCATrans 227

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D2 of 1996

B e t w e e n -

COLIN JOHN FITZGERALD

Applicant

and

F.J. LEONHARDT PTY LTD

Respondent

Application for vacation of hearing date

TOOHEY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN BY VIDEO LINK TO CANBERRA

ON FRIDAY, 9 AUGUST 1996, AT 9.05 AM

Copyright in the High Court of Australia

HIS HONOUR:   Mr Van Haeften, what is your position in this matter?  Are you appearing for Mr Fitzgerald?

MR F.P. VAN HAEFTEN:   I am, your Honour, just on this particular matter.  (instructed by Close & Carter)

HIS HONOUR:   Are you on the record at all?

MR VAN HAEFTEN:   We are not on the record for the substantive appeal, but we have been instructed to act in respect of this application.

HIS HONOUR:   Yes, very well.

MR J.B. WATERS:   Your Honour, I appear for the respondent with my learned friend, MR D.A. NORMAN.  (instructed by Dennis Norman & Associates)

HIS HONOUR:   Mr Waters, while you are on your feet, the first matter that arises here is the request for an abridgment of time in order to deal with the application.  Do you have anything to say about that?

MR WATERS:   I think that should be granted, your Honour, and the substantive application for adjournment should be dealt with this morning.

HIS HONOUR:   Yes, I agree.  There will be an abridgment of time to allow the summons to be dealt with this morning.  Mr Van Haeften, what is the basis of the application and what are you seeking?

MR VAN HAEFTEN:   Your Honour, we rely on the affidavit of Mr Fitzgerald filed on 7 August 1996.  What we are seeking is a vacation of the date of 15 August 1996 as the hearing date and a fresh date set down in or about November 1996.

HIS HONOUR:   Why do you identify November?  I mean, is there any reason to think that the matter can be dealt with then?

MR VAN HAEFTEN:   There are, your Honour.  There are a number of points on which we base this application.  If I can just put them to you in summary and then get back to ‑ ‑ ‑

HIS HONOUR:   No.  My question was in relation to your reference to November, to ask you what was the basis for referring to November itself as opposed to any other date?

MR VAN HAEFTEN:   Yes.  Your Honour, the basis for referring to November is that part of the reasons for this application are some financial difficulties that Mr Fitzgerald is currently experiencing.

HIS HONOUR:   No, we are not on the same wavelength, Mr Van Haeften.  I am not dealing with your substantive application at the moment, but you foreshadow that the application is to adjourn the appeal so that it can be dealt with and then you mention November as a particular date.  My question is:  have you any reason from the Court to think that November is available if this matter were adjourned?

MR VAN HAEFTEN:   We have no confirmation from the Registry, your Honour, that November is available.  Our point was that by November, in our submission, we would be properly prepared to deal with this matter, or at least Mr Fitzgerald would be.

HIS HONOUR:   Yes, I understand that point.  Now, let us come to the basis of the application itself.

MR VAN HAEFTEN:   Thank you, your Honour.  The basis of the application - there are a number of points, and I will give them to your Honour in summary to assist you.  One is that the ceasing of the applicant’s solicitor to act on 9 July 1996 has unfairly prejudiced his prosecution of the appeal.  Secondly, that whilst he is experiencing some current financial difficulties in funding the appeal, these financial difficulties are of an interim and temporary basis and that they will not jeopardise his capacity to prosecute the appeal.

Thirdly, that there has been, in our submission, late and inadequate notice of the date of 15 August 1996 as the firm date for the hearing of the appeal.  Fourthly, that the postponement of the appeal date to a later date does not involve any inherent prejudice to the respondent.  Fifthly ‑ ‑ ‑

HIS HONOUR:   Well, could I stop you in your tracks on that matter.  What is the position with the judgment that presently stands against your client?  Has that money been paid?

MR VAN HAEFTEN:   It has not been executed, your Honour, no.

HIS HONOUR:   Now, you are going on to your fifth point.

MR VAN HAEFTEN:   Yes, the fifth point, your Honour, is that there is an element of public interest in the matter, having obtained special leave, actually obtaining an opportunity to be dealt with properly.  Now, if I could take you to the first point, your Honour, if I may.

HIS HONOUR:   Yes.

MR VAN HAEFTEN:   From Mr Fitzgerald’s affidavit which I believe your Honour has before you ‑ ‑ ‑

HIS HONOUR:   You can take it that I have read that.

MR VAN HAEFTEN:   Yes, your Honour.  The relationship between Mr Fitzgerald and his solicitor degenerated significantly after February 1996 and he ceased to act on 9 July 1996.  Now, during that period Mr Fitzgerald was reliant on Mr Lee for the proper administration of his case and, whilst we acknowledge that there has been a delay in dealing with this case properly under the rules, we would put to the Court that part of the reason at least was because of the circumstances of the relationship between the solicitor and client and that the arrangement that Mr Lee and Mr Fitzgerald had was such that he was not in a position where he had to pay any moneys up front and as such ‑ ‑ ‑

HIS HONOUR:   I do not think I need go into the relationship between Mr Fitzgerald and his previous solicitors because that came to an end with the order made by the Chief Justice on 9 July.

MR VAN HAEFTEN:   That is correct, your Honour.

HIS HONOUR:   So that is really in a sense the starting point.  I note from the transcript, Mr Van Haeften, that on the hearing before the Chief Justice Mr Carter, a legal practitioner in Darwin, spoke on behalf of Mr Fitzgerald.  I put it that way because he, like you, was not on the record. 

MR VAN HAEFTEN:  Yes, your Honour, that is correct.

HIS HONOUR:   Is Mr Carter no longer involved in this matter?

MR VAN HAEFTEN:   Mr Carter is a partner in the firm that I am employed with, your Honour.

HIS HONOUR:   I see.

MR VAN HAEFTEN:   He was not available on this date and so I am appearing in his place.

HIS HONOUR:   Yes, thank you for that.

MR VAN HAEFTEN:   Your Honour, in respect of the financial difficulties that we have referred to, they are in part contributed to by the fact that the arrangement that Mr Fitzgerald had with Mr Lee was such that no up‑front moneys were paid and now he is in a position where he is faced with the prospect of having to raise moneys up front.  Our submission is that he is in no way abandoning this case.  It is simply a matter of him requiring some time to raise the required funds.  In respect to the matter of late notice on the hearing date, you will note from Mr Fitzgerald’s affidavit that the first time that he had an inkling that this matter was going to be dealt with in August 1996 was on the application of Mr Lee where his Honour Chief Justice Brennan alluded to the possibility of this matter being dealt with in August.

HIS HONOUR:   Yes.

MR VAN HAEFTEN:   Now, the Deputy Registrar had some contact with our firm in the period between 9 July 1996 through to 23 July 1996 and during that contact it was explained to the Deputy Registrar that Close and Carter were not instructed in this matter and that the reason for that was that there were some financial difficulties on the part of Mr Fitzgerald.  We indicated at that point to the Deputy Registrar that it would be unlikely that Mr Fitzgerald would be in a position to prosecute the appeal or go forward with it on 15 August 1996.  On 23 July 1996, because we were not instructed at that point, we referred the Deputy Registrar directly to Mr Fitzgerald to deal with this matter and our instructions are that it was only on that particular date that any firm indication was given that this matter would proceed on 15 August 1996.

Fifthly, we would say that, as this case has got over the hurdle of special leave, that it would appear that the Court feels that there is sufficient merit in the issues of the case to give it a proper hearing.  We would say that the opportunity to have proper representation, and make proper preparation for that appeal date, is required, and that, if the matter does proceed on 15 August 1996, it will basically constitute a waste of time for the Court, as Mr Fitzgerald cannot and will not be in a position to proceed, and it will be a lost opportunity for Mr Fitzgerald.

HIS HONOUR:   Tell me this, Mr Van Haeften, does your firm propose to go on the record as solicitors for Mr Fitzgerald?

MR VAN HAEFTEN:   We are currently negotiating that position, your Honour.  It will turn on a financial agreement that is alluded to in

Mr Fitzgerald’s affidavit.  We do propose to go on the record as soon as that is finalised. 

HIS HONOUR:   Yes, thank you.  Is there anything else you want to say in support of the application?

MR VAN HAEFTEN:   Not at this point, your Honour.

HIS HONOUR:   I will call on Mr Waters.

MR WATERS:   The respondent opposes the application, fundamentally on the grounds that the reasons as suggested in the affidavit would not be sufficient or adequate, and principally in that context we say that the affidavit itself is not frank about the critical issues which my friend relies upon.

So, firstly, the application for special leave was successful in August of last year ‑ I am sorry, in February - and the applicant would have known then that he would have had to have some funds to hand, notwithstanding any arrangement with Mr Lee.  He evidently, so far as the earlier arrangement was concerned, had made a commitment to pay his counsel’s fees in respect of the special leave application, and it would seem clear ‑ or, not clear, but one would imply from this affidavit that perhaps that has not yet been paid, but he would certainly have known, when he was successful, that that would have been an expectation, and he would have had to have made some arrangements, disregarding what arrangement he made with Mr Lee.

Your Honour, paragraph 9 of this affidavit says ‑ talking about his private arrangement with Mr Lee:

Subsequent to coming to this agreement there arose a dispute between myself and Mr Lee as to the abovementioned arrangement.

Now, the affidavit lacks frankness.  When was that dispute?  What was it all about?  If that dispute was at an earlier time, it would considerably weaken any argument as far as any professed embarrassment now.  In paragraph 15, he says:

I am currently negotiating private mortgagee finance to fund this case, but will not have these negotiations finalised in time to meet the hearing date of 15th August 1996.

Your Honour, if one comes to the Court asking to vacate a date, especially in this day and age, one would have hoped that the Court would need to be satisfied as to just when those finance application was commenced, with whom; how long does his financier need to okay the matter; things of that sort, so that the Court could assess the validity of this application.  The application is so vague, we say, critical issues of that sort really should be fully exposed so that your Honour could satisfy yourself as to the bona fides of the claim.  Off‑stage references to disputes or private mortgage finance and things of this sort in this context, we would argue, are not sufficient.

If your Honour please, my friend does of course rely, as one would do, on this question of prejudice.  There is no stay, it is true; but of course there has been no payments made by the - - -

HIS HONOUR:   But there is nothing to stop your client executing on the judgment, is there?

MR WATERS:   No, your Honour, this is true.  I concede that.  So, we cannot point to a prejudice that we could not cure, if I can put it that way.  So, if you were minded, notwithstanding a case-management approach to matters of this sort, to grant such an application in the face of what we say is the flimsiest of evidence, we would ask that it be done on terms.  The terms we would suggest would be that - although, of course, it is money again - at least an amount sufficient to meet the costs thrown away should be paid to the Registrar to abide the appeal and, of course, that there be an order that the costs thrown away be taxed.  I do not know that your Honour would want me to outline the extent of those costs, but they are something in the order of - - -

HIS HONOUR:   No, I do not want you to do that, Mr Waters, but when you say “costs thrown away,” costs thrown away by reason of the matter not proceeding or by reason of today’s application or what?  I mean, what costs would be lost, so far as your client is concerned, by the matter not proceeding next week?

MR WATERS:   There would be principally counsel’s fees, the matter being a very late cancellation, and some solicitors’ fees, although on taxation it would be conceded that the time can be used, perhaps not quite as much, but costs of that sort,your Honour.  I have not asked my instructing solicitor to detail them, but the justification for actual losses could be the province of the Master, or the taxation registrar.

HIS HONOUR:   Yes, thank you.

MR WATERS:   Yes, your Honour, that is all we can properly say.  The prejudice is a financial prejudice, but it is a considerable one, especially so far as counsel’s fees are concerned.

HIS HONOUR:   Yes, thank you, Mr Waters.  Do you want to say anything by way of reply, Mr Van Haeften?

MR VAN HAEFTEN:   Your Honour, only that in respect of costs thrown away, in our submission, we would say that given the circumstances of insufficient notice and the circumstances of Mr Lee ceasing to act, that the Court should give consideration to these costs being taken either as reserved or costs in the cause.  Thank you, your Honour.

HIS HONOUR:   There are really two sets of interests involved here.  One is the interests of the parties and the other is the interest of the Court.  As far as the interests of the parties are concerned, on the one hand, Mr Van Haeften submits that the appellant, for all the reasons that have been offered, is not in a position to proceed to the hearing of the appeal next week.  The time interval has not been great, although I see some force in what Mr Waters says about the detail contained in the affidavit in support of the application.  So far as the respondent is concerned, it seems to be accepted that there is no prejudice in the sense that there being no stay the respondent is free to execute on the judgment which presently stands.

So far as the Court is concerned it is desirable that when dates are fixed for the hearing of a matter that they proceed unless circumstances dictate otherwise.  On the other hand, it will be of no advantage to the Court if the matter remains in the list for next Thursday, then the Court is faced with a last minute application for an adjournment.

In the circumstances, it seems to me that the matter should be adjourned in the interests of all concerned, or at least in the interests of the appellant and the respondent not suffering any prejudice by reason of the adjournment.  So far as terms are concerned, it seems to me appropriate that there should be an order that the appellant pay any costs thrown away by reason of the adjournment and the costs of today’s application, although I am not minded to make any order that permits those costs to be taxed forthwith.

The order I propose is that the appeal be adjourned from 15 August 1996.  Do you want to be heard on the question of costs of today’s application, Mr Van Haeften?

MR VAN HAEFTEN:   If Mr Waters is prepared to set that out, your Honour.

HIS HONOUR:   No, I am not talking about the quantum of costs - that your client should pay the costs in any event.  Do you oppose that application?

MR VAN HAEFTEN:   We do oppose the application, your Honour, simply on the grounds that I have stated, that in the circumstances, whilst normally there would be an argument for costs in this situation, that the circumstances as set out to you make this a special case, and as such consideration should be given to the costs being costs in the cause.

HIS HONOUR:  Yes.  I do not want to hear you on that matter, Mr Waters.

In addition to the order that I have just enunciated for adjournment of the appeal, there will be a further order that the appellant pay the costs of today’s hearing - that is, the costs of the summons - and any costs thrown away by reason of the adjournment.  Is there anything else that counsel wish to say on the matter?  Very well, those will be the orders of the Court.

AT 9.27 AM THE MATTER WAS CONCLUDED