Fox v Armytage

[2005] HCATrans 317

[2005] HCATrans 317

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M12 of 2005

B e t w e e n -

JEFFREY FOX

Applicant

and

PENNY ARMYTAGE (SECRETARY TO THE DEPARTMENT OF JUSTICE)

Respondent

Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 12 MAY 2005, AT 10.05 AM

Copyright in the High Court of Australia

MR J. FOX appeared in person. 

HIS HONOUR:   Now, Mr Fox, we have to make some arrangements so that you can hear properly, I believe.  We will just give a moment while we adjust that equipment for you, so take your time.  Now, are you able to hear what I have to say, Mr Fox? 

MR FOX:   Yes, your Honour. 

HIS HONOUR:   We can then go ahead, can we? 

MR FOX:   Yes, your Honour, thank you. 

HIS HONOUR:   Yes.  Now, Mr Fox, as I understand it, you applied for special leave to appeal against orders of the Court of Appeal that were made in November 2004 and your application for special leave was filed in January 2005.  The time for filing your written case has gone by and you want to have further time within which to file your written case.  Is that right? 

MR FOX:   That is correct, your Honour. 

HIS HONOUR:   Now, Mr Fox, I have read the papers.  I see that you have not yet served this application on the Secretary to the Department of Justice.  Am I right about that? 

MR FOX:   As far as the summons, yes. 

HIS HONOUR:   You have not served the summons yet? 

MR FOX:   Yes. 

HIS HONOUR:   What I am presently thinking of doing is giving you one more week within which to file your draft notice of appeal and your written case.  If you do that within a week, then your application will go ahead. 

MR FOX:   Thank you, your Honour. 

HIS HONOUR:   If you do not do that within the week, then the likelihood is that you have had your last chance.  So the intention I have at the moment is to give you one more week. 

MR FOX:   Yes, your Honour. 

HIS HONOUR:   Is there anything you want to say to me about my doing that? 

MR FOX:   Your Honour, all I – as you are going to say, I am unrepresented and I cannot get any – I am actually all by myself, including my wife.  She does not want to know about it, because she is upset about enough.  I do not really know what I should be filing particularly in the sense of the supportive material.  I put a list there, which is content ‑ ‑ ‑

HIS HONOUR:   The difficulty, Mr Fox, I cannot give you ‑ ‑ ‑

MR FOX:   I am sorry, your Honour, I cannot hear you well enough. 

HIS HONOUR:   I am losing you?  All right, just a moment. 

MR FOX:   It is going static. 

HIS HONOUR:   If we try that, how are we doing now?  Are you able to hear me now, Mr Fox? 

MR FOX:   It might be worthwhile, your Honour, to turn the volume down a little bit.  Thank you, sir. 

HIS HONOUR:   How is the level of volume now?  Is that comfortable for you? 

MR FOX:   Much better, your Honour. 

HIS HONOUR:   You are able to hear? 

MR FOX:   Yes, I am. 

HIS HONOUR:   Right.  We had got to the point where you were saying that you did not quite know what you had to know. 

MR FOX:   That is correct, your Honour. 

HIS HONOUR:   The difficulty is, I cannot give you advice. 

MR FOX:   I appreciate your situation. 

HIS HONOUR:   There are all sorts of reasons why I cannot give you advice.  Some would say it is probably because the advice I would give you is wrong, but there are other more deep-seated reasons why I cannot give you advice.  But the Rules provide time limits for the very basic reason that we just have to get on and we have got to do these things within limited times. 

MR FOX:   I appreciate that your Honour – and it is very difficult with me, with finance.  I rely totally on my wife. 

HIS HONOUR:   I understand. 

MR FOX:   That is the difficulty. 

HIS HONOUR:   Why should I not give you some more time but a week?  Can you do it within a week? 

MR FOX:   Well, at the moment, I have lost my printer.  It is totally gone, and this is the problem.  But basically I have got to copy – as you would be aware, your Honour, I have put in the applicant’s written case and also the draft appeal, and I do not want to vary from what is there.  So that part is all right.  It is just ‑ ‑ ‑

HIS HONOUR:   Well, that is what I am talking about.  I am talking about the draft notice of appeal and the written case.  Now, are those just about ready? 

MR FOX:   As I would understand, apart from making mistakes myself, they are right. 

HIS HONOUR:   Then if we give you a week to file the final version of those documents ‑ ‑ ‑

MR FOX:   Yes, that part is all right, but I have got to file ‑ ‑ ‑

HIS HONOUR:    ‑ ‑ ‑ then the rest of it, Mr Fox, will take place over time.  At the moment, the only hurdle that you have to look at getting over is (1) put in your draft notice of appeal; (2) put in your written case; and do that before 4 o’clock on the 19^th, next Thursday. 

MR FOX:   The 19^th.  Can I ask one question, your Honour, on this one.  I am not trying to put that you should answer you should not.  The actual material – has that got to be filed at the same time? 

HIS HONOUR:   At the moment, I am concerned only with the draft notice of appeal and your written case.  That is all. 

MR FOX:   I can certainly do that. 

HIS HONOUR:   Right.  Well, take a seat. 

MR FOX:   Thank you very much, your Honour. 

HIS HONOUR:   The applicant, Mr Jeffrey Fox, has applied for special leave to appeal from an order dismissing an application for leave to appeal made to the Court of Appeal of Victoria.  The orders of the Court of Appeal against which he sought special leave to appeal were made on 26 November 2004, but his application for special leave was not made until 18 January 2005, outside the time fixed by the Rules for making the application. 

Mr Fox is an unrepresented applicant, for the purposes of Chapter 4 of the High Court Rules 2004. His application for special leave is therefore governed by rule 41.10 of those Rules. By rule 41.10.3, an unrepresented applicant is to present his or her argument to the Court in the form of a draft notice of appeal and a written case, and the written case must be filed within 28 days of the filing of the application. This Mr Fox has not done.

On 3 May 2005 he filed a summons seeking, in effect, dispensation from compliance with the requirements of the Rules and dispensation from the consequences that would follow under the Rules in consequence of non‑compliance.  Although the summons Mr Fox filed was in a form indicating that it was intended to serve it upon the proposed respondent to the application for special leave to appeal, the summons has not been served. 

In the particular circumstances of this case, I think the better course to follow is to give Mr Fox one further chance of filing a draft notice of appeal and written case.  Here the proposed respondent is not being kept out of the fruits of a judgment obtained in the courts below, save, perhaps, as to questions of costs.  On the material that he has presently filed, it seems possible, indeed, even likely, to be a case where the answer which a respondent would seek to make to the application for extension of time would be an answer depending upon an assessment of the merits of the underlying application for special leave. 

In those circumstances, I consider the better course to follow is to give the applicant one further chance to put his proposed application for special leave in its best possible form by filing his draft notice of appeal and his written case.  If, then, two Justices were to form the opinion that the application so formulated enjoyed no prospect of success, it would be dismissed, without the respondent incurring further cost.  By contrast, if a Justice concluded that it is appropriate to direct service of the application on the opposite party, the course which I propose to follow will avoid Mr Fox being shut out from prosecuting the application which he now seeks to advance. 

For these reasons, I will order: 

1.        The applicant shall have until 4.00 pm, 19 May 2005 within which to file his draft notice of appeal and his written case in support of his application for special leave to appeal; 

2.        If, on or before 4.00 pm, 19 May 2005, the applicant files his draft notice of appeal and his written case in support of his application for special leave to appeal, this application is not deemed to have been abandoned; 

It is proper to add as order 3:

3.        The applicant should pay or bear the costs of this application in any event. 

Now, Mr Fox, the effect of that is you have one week to put in your draft notice of appeal and your written case.  If you do not, your application stops.  If you do, your application goes on in the ordinary way. 

MR FOX:   Thank you, your Honour.  I apologise for any action I have done in this Court which has ‑ ‑ ‑

HIS HONOUR:   Thank you, Mr Fox, that is unnecessary. 

Adjourn the Court. 

AT 10.18 AM THE MATTER WAS CONCLUDED