Francis v Eggleston Mitchell Lawyers Pty Ltd

[2012] HCATrans 228

[2012] HCATrans 228

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M49 of 2012

B e t w e e n -

LOUISE FRANCIS

Applicant

and

EGGLESTON MITCHELL LAWYERS PTY LTD (FORMERLY EGGLESTON MITCHELL LAWYERS)

Respondent

Application for reinstatement

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 19 SEPTEMBER 2012, AT 9.37 AM

Copyright in the High Court of Australia

MR R.G. MITCHELL:   May it please the Court, I appear on behalf of the respondent in that matter.  (instructed by Wilmoth Field & Warne)

HER HONOUR:   Is Ms Francis in court?

MR MITCHELL:   She does not appear to be, your Honour.

HER HONOUR:   Perhaps I should stand the matter down and give her an opportunity.  There might be a traffic issue or something.

MR MITCHELL:   Yes, certainly, your Honour; thank you.

AT 9.37 AM THE MATTER WAS ADJOURNED

UPON RESUMING AT 9:48 AM:

HER HONOUR:   Mr Mitchell has announced his appearance.  You are appearing for yourself, Ms Francis?

MS FRANCIS:   Yes, your Honour, I am.

HER HONOUR:   Would you wish to address me?

MS FRANCIS:   Your Honour, I am seeking leave to file documents out of time due to the ‑ ‑ ‑

HER HONOUR:   Breakdown of the printer, yes.

MS FRANCIS:   Yes.

HER HONOUR:   Very well.  They have been filed?

MS FRANCIS:   The affidavit was filed, yes, when I made the application.  Yes, your Honour, they have been.

HER HONOUR:   Have you served any of your materials which have been filed?

MS FRANCIS:   Yes, your Honour.  I had retained a firm of accountants who had their own solicitors who were to serve the defendant, but I do not

know if they did.  It would seem they have not.  I tried to find out from them if they had.  Anyway, when I was notified by the Court I served them by email, the summons and the affidavit.

HER HONOUR:   Very well.  You may take your seat.  Yes, Mr Mitchell.

MR MITCHELL:   Your Honour, the respondent objects to the application.

HER HONOUR:   For an extension of time.

MR MITCHELL:   For an extension of time.  Your Honour, I think, strictly speaking, because the application is deemed to be dismissed by failure to comply with the rule, the application should be to reinstate rather than seek leave out of time.  But be that as it may, the significant concern that the respondent has in this matter is the affidavit material that the applicant purports to rely upon in this matter.  It certainly is my submission that it bears some inquiry as to whether or not an affidavit has been sworn in relation to this matter.

HER HONOUR:   Just pausing for a moment, if an unrepresented applicant does not comply with a time limit imposed by the rules then the application for special leave will be taken to be abandoned, unless the Court orders or directs otherwise.

MR MITCHELL:   Yes.

HER HONOUR:   As you might imagine, it is quite common for short extensions of time to be sought in a whole range of circumstances and then what would normally happen in relation to an application of this kind is that, being an unrepresented applicant, the matter would go to one of the High Court panels for further disposition.  It would assist me if you would identify whether you are going to make an application or are you going to bring on a summons making some application?  I am just not quite sure where you are going, Mr Mitchell.  I am conscious of some of Justice Jessup’s remarks in relation to the effect of adjournments and protracted disputes and so on in the context of the basic proceeding.

MR MITCHELL:   Yes, and I think it is fair to say the applicant has made use of the appeal process on a number of occasions in relation to this matter.  The applicant is a bankrupt, has been a bankrupt since approximately June last year.  What has been happening since that date is that a number of cost orders have been made against the applicant.  Those cost orders, of course, come out of the bankrupt estate.  In other words, it deprives creditors of what would otherwise be the fruits of the bankruptcy.  They are deprived of that, so they are significantly disadvantaged by any proceeding that is now being taken.

Consequently, it is not that the applicant appears in a situation where she is not a bankrupt.  She is, in fact, a bankrupt, and she has not applied at any stage throughout all these proceedings for a stay in relation to the bankruptcy.  Presently there are two trustees that have been appointed in relation to the bankrupt estate.  They cannot do any work in relation to this matter because of the constant appeals by the applicant in relation to this matter.  They are incurring costs in relation to this matter, having been made aware of all the various applications, appeals, et cetera, that have been made by the applicant.

HER HONOUR:   Do I understand all that to mean that what you wish to do is have an opportunity to oppose the application for an extension of time?

MR MITCHELL:   Yes.

HER HONOUR:   As I would apprehend it, on the basis that the prospects are so low or on the basis that an arguable case has not been presented or some other basis?

MR MITCHELL:   Yes, the prospects are low, as noted by his Honour Judge Jessup in the Federal Court.  As I said, what concerns us in relation to this matter is that is there any material even now before the Court in which the Court can determine the application even today?  Because that affidavit has not been sworn, on the face of it, and if it has been sworn, there is clearly a problem with it.  I wish this Court would take it up with the Registry here because this is a serious problem in terms of the swearing of this affidavit.  This affidavit, on its face, appears to have been sworn at a later date than it purports.

This is an extremely serious problem.  I do not know how an affidavit that bears the date of this Court as 4 July 2012, which is date‑stamped on page 1 – on page 2 it is not sworn – and then yesterday we are provided with page 2 which purports to be now sworn on the same date, that is, 27 June.  In my submission, that is an impossibility.  That suggests that there is unacceptable behaviour here by both the applicant and, dare I say, members of the Registry.  In my submission, it is totally unacceptable.

HER HONOUR:   Leaving that aside, what you want, as I understand it, is an opportunity to make submissions that the prospects of success in relation to a grant of special leave are not such as to warrant a grant of special leave and, accordingly, no extension of time should be granted.  Does that capture in a nutshell what you wish to do?

MR MITCHELL:   Yes, certainly, your Honour.

HER HONOUR:   Are there other aspects other than the affidavit issue which you have mentioned which will constitute part of the argument?  Have you had served upon you all the documents necessary for you to advance the arguments you wish to advance?

MR MITCHELL:   No, your Honour.  Even if we were to accept this affidavit, there is no exhibit to the affidavit.  We have not seen the exhibit.  It has not been served.  So we do not know what the case is that we are actually meeting here.  We have requested all this information but it is just not forthcoming.

MS FRANCIS:   Can I respond, your Honour?

HER HONOUR:   Yes.  Have you said all you want to say, Mr Mitchell?

MR MITCHELL:   Yes, at this point, your Honour; thank you.

MS FRANCIS:   Your Honour, I do not know what Mr Mitchell is talking about with the affidavit.  I came in and filed the affidavit and the application at the same time.  It was sworn by the Court, so I really do not know what he is talking about there.

HER HONOUR:   He is suggesting it was an unsworn affidavit and that a sworn affidavit was filed possibly subsequently.

MS FRANCIS:   That is just untrue.  I had three copies.  Two were sworn; the other one was stamped.  I only ended up with the stamped one because the Court has one and the other one is to be served.  The three affidavits were the same affidavit and all were sworn at the same time, your Honour.  Because of his allegations I came into the Court yesterday and got a copy of the one on the Court record.  So he has my copy and the one on the Court record, which are the same two documents which were both sworn when the application was filed.  It is the same document.  So to try and say that it is something other than that is just false.

The other thing is with regard to the bankruptcy.  There has been no proven debts in the bankruptcy, even the one that initiated the bankruptcy seven years after the alleged debt which I dispute.  It is a long story, but that is the only debt in the bankruptcy that has been accepted at this point.  There has been no other debts produced.

HER HONOUR:   Yes.  Have you been in contact with the trustee ‑ ‑ ‑

MS FRANCIS:   I am in contact with the trustee and ‑ ‑ ‑

HER HONOUR:    ‑ ‑ ‑about this proceeding?

MS FRANCIS:   Well, as it stems from a personal injury matter, your Honour – the trustee is aware of it, but as it is a personal injury matter it is outside the trustee’s jurisdiction or powers or control, your Honour.

HER HONOUR:   All right, if you just sit down for a moment, I will ask Mr Mitchell to go to the rostrum.  I am informed by the Registry that the sworn affidavit is on the file and it has been there since 4 July 2012 and it was sworn on 27 June 2012.  Now, as I said, Mr Mitchell, in the normal course, this matter would go off to be dealt with by a panel of two, having regard to the fact that the applicant for special leave is unrepresented.  You do not have a summons on foot.  I am really very uncertain about exactly what you wish to do.  Your main point seemed to be the point about the affidavit.  Perhaps you could tell me.  Are you proposing to file a summons?  Are you proposing to seek, through the filing of a summons, to formally oppose the application for an extension of time?

MR MITCHELL:   Your Honour, yes ‑ ‑ ‑

HER HONOUR:   You will do that?

MR MITCHELL:   We will do that, yes.

MS FRANCIS:   Can I respond to that?

HER HONOUR:   Yes.

MS FRANCIS:   They have had three weeks to prepare any application for summons or anything they were going to do.  I do not see why it was not done sooner, your Honour, if they were intending to.  They were implying that they were going to consent to filing the documents and then I got an affidavit sometime last night that I only saw this morning and that I have not even had time to read, and I do not see why, if they are going to put all that effort into doing a 57‑page affidavit, they could not have filed their ‑ ‑ ‑

HER HONOUR:   I cannot say any more other than that they are the respondent to this application and they wish to make an application.  Now, Mr Mitchell, just on issues of time, your summons could be filed today, I dare say.

MR MITCHELL:   Maybe I could suggest that we file it tomorrow, your Honour.  I actually have another commitment after this in another court.

HER HONOUR:   You are not requiring any directions about service of any material?  You did mention not seeing an exhibit before.

MR MITCHELL:   We have not seen the exhibit.

HER HONOUR:   You have got a copy of the affidavit.

MR MITCHELL:   We have got a copy of what purports to be an affidavit.

HER HONOUR:   Yes, I told you what the Registry’s file shows.

MR MITCHELL:   I appreciate that, your Honour, but we have copies of both.  They are both different signatures.  There is an irregularity in relation to this affidavit.

HER HONOUR:   Very well.

MR MITCHELL:   Maybe it is something I will take up with the Registry as to how this has occurred.

HER HONOUR:   You want service of the exhibits, copies of the exhibits?

MR MITCHELL:   Yes, copies of the exhibits.

MS FRANCIS:   Your Honour, I was told that because the exhibit is the actual appeal document that it is not appropriate that ‑ ‑ ‑

HER HONOUR:   The affidavit is sworn and the exhibits are attached to the affidavit.  As I understand it, the respondent wishes to make an application within a short compass of time to oppose the grant of an extension of time.

MS FRANCIS:   Your Honour, is it up to the defendant to scrutinise my actual application, the actual appeal ‑ ‑ ‑

HER HONOUR:   The respondent is the respondent on the record who wishes to make an application in relation to your application – a cross‑application, if you like, in relation to your application for an extension of time.

MS FRANCIS:   I was told that the exhibit is not privileged because it is not for a determination by them.  Is that the right ‑ ‑ ‑

HER HONOUR:   The respondent is entitled to make an application and entitled to oppose your application and is therefore entitled to be served with whatever you are relying on in relation to your application.

MS FRANCIS:   I understand, but because it is the actual ‑ ‑ ‑

HER HONOUR:   The fact that it is exhibits does not matter.  Whatever you are relying on – if you are not relying on the exhibits that would be one issue, but you are relying on the affidavit and the exhibits and, as I understand Mr Mitchell, there is a desire to file the summons to oppose your application for an extension of time which would require the respondent to have access to the material upon which you rely for the seeking of the extension of time.

MS FRANCIS:   Your Honour, he has that material.  The exhibit is just the appeal document so that is not pertinent to his application, really, is it?  I understand what you are saying, that because it is part of the affidavit it should be included ‑ ‑ ‑

HER HONOUR:   Mr Mitchell, I think that Ms Francis is saying if you read the affidavit you have already got copies of the exhibits.

MS FRANCIS:   No, I am sorry; that is not what I am saying, your Honour.  The exhibit is the actual appeal application.  Because they are the – I am sorry; what is the right term? – other side, they are not ‑ ‑ ‑

HER HONOUR:   I cannot understand your resistance, Ms Francis.  Mr Mitchell wants to make an application to oppose your application for an extension of time.

MS FRANCIS:   The exhibit is the actual document that I am filing to the Court, so it is up to the Court to determine whether that is competent or appropriate or not.

HER HONOUR:   Mr Mitchell wants to oppose your application for an extension of time.  To be in a position to do that, he is appearing for the respondent on the record and is therefore entitled to be served with the material on the record, the affidavits in support of the ‑ ‑ ‑

MS FRANCIS:   Your Honour, “privilege” is probably not the right word, but it is not pertinent to my application ‑ ‑ ‑

HER HONOUR:   For an extension of time?  Is that what you are trying to say?

MS FRANCIS:   Because it is the actual appeal document; it was attached to the affidavit ‑ ‑ ‑

HER HONOUR:   It is the draft notice of appeal and so on, is it?

MS FRANCIS:   Yes, it is.  So is that up to the respondent to analyse my application?

HER HONOUR:   The respondent wants to oppose your application for an extension of time in respect of that application and therefore he is asking to be served with material relevant to your application.

MS FRANCIS:   So is he then going to go to the merits of the application?

HER HONOUR:   I do not know what he is going to argue, but he has foreshadowed an argument that you should not be given the extension of time because ‑ ‑ ‑

MS FRANCIS:   But I dispute that because I say that ‑ ‑ ‑

HER HONOUR:   Ms Francis, you will get an opportunity to dispute that later when he makes his application.  It may be a summons does not get filed on time.  All sorts of things could happen.

MS FRANCIS:   I do object to him ‑ ‑ ‑

HER HONOUR:   But it is necessary for me to make directions in relation to the respondent foreshadowing the desire to make an application to oppose your application for an extension of time.

MS FRANCIS:   Well, I was told, even though I am not represented, that it was not required to file the exhibit because it shows in the actual affidavit that the exhibit is the appeal document so therefore he should not be in a position to be analysing that ‑ ‑ ‑

HER HONOUR:   I cannot do more than tell you that ‑ ‑ ‑

MS FRANCIS:   Okay.

HER HONOUR:    ‑ ‑ ‑ it has been foreshadowed that there will be a summons and that the summons will then have to be returned before me and heard.  You will have an opportunity to make submissions in relation to that summons seeking to – well, I am not sure what orders it will seek, so perhaps I should not try and anticipate too much.

MS FRANCIS:   But your Honour is saying that I have to give them the exhibit, that it is necessary?

HER HONOUR:   Yes, there would need to be the service upon the respondent of material upon which you are relying, which must include your application, for them to proceed with their summons.

MS FRANCIS:   Because they have all the information, bar the exhibit.

HER HONOUR:   Yes.  They will have the application and your application for an extension of time and they want to make a cross‑application in relation to your application for an extension of time.

MS FRANCIS:   They have had that material.

HER HONOUR:   They will do so, as I understand it, based on the material.

MS FRANCIS:   That is sort of back to what I said.  They have had time because of ‑ ‑ ‑

HER HONOUR:   I understand that.  Perhaps the best way of dealing with that is as part of your opposition to whatever orders they are going to seek pursuant to a summons which they have foreshadowed.

MS FRANCIS:   Right; yes, your Honour.

HER HONOUR:   Thanks, Ms Francis.  Mr Mitchell, what direction are you seeking in relation to service?  What do you want?

MR MITCHELL:   Your Honour, I am seeking to have served on us an affidavit.

HER HONOUR:   A copy of the affidavit sworn on 27 June 2012, together with the exhibits.

MR MITCHELL:   Together with the exhibits; yes, your Honour.

HER HONOUR:   In relation to the adjournment of the applicant’s summons, which is a direction implicit in your indication that a summons containing a cross‑application will be filed tomorrow, I would have thought in the light of what you have said the matter should proceed with reasonable expedition.  So what I would propose would be an adjournment for a week until the 26th – that is, next Wednesday.  I think it might be helpful for the proper disposition of this matter if you are directed to file and serve a summary of argument perhaps two days before an adjournment date.

MR MITCHELL:   Yes.

HER HONOUR:   Ms Francis, what I have just mentioned will be a direction that the respondent file and serve a summary of their argument in opposition to your application for an extension of time two days before it is going to be heard, which will give you an opportunity to have notice of what is to be said on the hearing date.  I am disinclined to direct you to respond to that, but of course if you wish to make a response, you could do so – if you wished to respond in writing, that is.  But I am not requiring you to do so.

MS FRANCIS:   So an affidavit or any way?

HER HONOUR:   An affidavit, yes – I am sorry; no.  You have already got your affidavit about your printer breaking down.  You might want to swear an affidavit in response to some matters that are raised.  Alternatively, you might simply wish to put in an outline of argument.  You may decide you do not wish to put in an outline of argument; you would prefer to do it orally on the day.  That is why I am not directing you to put in any answering outline in relation to the summons.

MS FRANCIS:   Okay, your Honour.  I understand, thanks.

HER HONOUR:   I just want you to be very clear that if you wish to make some written response to the outline of argument which you received two days beforehand, you may do so.

MS FRANCIS:   Yes, your Honour; thank you.

HER HONOUR:   On reflection, Ms Francis, it might be better if I grant you the leave to file and serve a written outline.  If you do not, it does not matter.  Perhaps that is the better course.

MS FRANCIS:   Is that different to ‑ ‑ ‑

HER HONOUR:   It just might be better to grant you the leave to do that.

MS FRANCIS:   Thank you.

HER HONOUR:   The orders will be:

1. The respondent to file and serve a summons in this proceeding on or before 4.00 pm, 20 September 2012. 

1. The applicant to serve on the respondent a copy of her affidavit sworn on 27 June 2012, together with all exhibits, by 12.00 pm on 21 September 2012.

1. The respondent have leave to file and serve a summary of argument in support of its summons to be filed and served on 20 September 2012 on or before 5.00 pm on 24 September 2012.

1. The applicant have leave to file a summary of argument in relation to the respondent’s summons by 5.00 pm on 25 September 2012.

1. The hearing of the applicant’s summons filed on 4 July 2012 be adjourned until 9.30 am on 26 September 2012.

1. The hearing of the respondent’s summons to be filed and served on 20 September 2012 be fixed for 9.30 am on 26 September 2012.

1. Costs of today be reserved.

Anything further?

MR MITCHELL:   Your Honour, could I just suggest maybe in relation to the applicant’s affidavit and the application, could it be served say by 12.00 pm on the 20th, that is tomorrow, rather than the 21st so that we have got it before we actually – in case there is something we need to do in our application that is reflected in that affidavit?

HER HONOUR:   Is that any difficulty, Ms Francis?  What Mr Mitchell is seeking is a copy of your affidavit sworn on 27 June, together with all the exhibits, and because there is an argument toing and froing about various copies floating around it does seem to me to be a practical requirement that you file that affidavit, together with the exhibits, which may completely dispose of an argument about times and times of swearing and dates and copies being different and all of that.  So, do you understand what I am saying?  I am directing that you serve on the respondent a copy of that sworn affidavit of 27 July 2012, together with copy exhibits.  Mr Mitchell is asking that it be done by noon on 20 September, that is tomorrow.

MS FRANCIS:   Yes, your Honour, that should be all right.

HER HONOUR:   It should be all right.

MS FRANCIS:   Thank you.  I was seeking legal advice as to – but I will not be able to get that by tomorrow probably as to what ‑ ‑ ‑

HER HONOUR:   Well, this is just a direction in relation to service.  It certainly does not preclude you seeking legal advice.  It is just a service of the materials.

MS FRANCIS:   But I already had legal advice as to that discussion we had before about the exhibits but I understand your Honour is saying that I have to serve it so ‑ ‑ ‑

HER HONOUR:   Yes.  Just one minute.  On reflection, Ms Francis, I think you might be referring to the fact that in an application for special leave which is made by an unrepresented person, there is no need to serve copy documents on the respondent.  The difference in this case is that the respondent has come to Court and wishes to make an application in relation to your application and, accordingly, the direction for service is not one about which there needs to be any argument.  I think you have got in mind the circumstance in which a respondent does not seek to hear or make any applications.

MS FRANCIS:   It is more to the fact that the exhibit is the actual appeal document, I think, is what I was advised.  That it is not for the respondent to determine or critique that inasmuch as it is not reliant on the – is it?  I do not know.

HER HONOUR:   I think you may have in mind that there be no requirement to service in different circumstances where this matter took an orthodox route in relation to being an unrepresented litigant making an application for special leave, but the appearance of Mr Mitchell today has altered the complexion of the case.

MS FRANCIS:   I understand, your Honour.  Sorry, can I just say, the application and the affidavit via the exhibit have been served on the respondent and they were saying they made no suggestion to me that they were going to defend – I mean, they were requesting an adjournment because they did not have their chosen barrister available or something and I was under the impression it was going to be adjourned or that they were going to – actually they indicated they were going to not oppose the application.  So, I guess they are now so ‑ ‑ ‑

HER HONOUR:   Well, it seems there has been a change of mind.

MS FRANCIS:   I understand, your Honour. 

HER HONOUR:   This does involve further expense and delay, regrettably, but there clearly has been a change of mind in relation to that.  I do not think it is appropriate for me to say anything further at this stage.

MS FRANCIS:   Thank you, your Honour.  I will serve that ‑ ‑ ‑

HER HONOUR:   I have made the direction because there are all sorts of possible arguments about not having the right copy and matters of that sort. 

MS FRANCIS:   It is all the same copy.

HER HONOUR:   If they can be easily disposed of by a direction in relation to service of the affidavit together with the exhibits, so much the better in terms of the time which will be taken up in relation to the hearing of your summons and the anticipated summons which, of course, will be heard on the same day.  So in a sense you have been told there will be an application for an adjournment of your summons and that is what has effectively happened, the hearing of your summons.

MS FRANCIS:   Yes, your Honour.  Do the issues that Mr Mitchell was bringing up about the trustee and various things that really were untrue, should I defend those or wait for the actual ‑ ‑ ‑

HER HONOUR:   Well, it is a matter for you how you wish to deal with whatever is brought forward in support of a summons which is effectively a cross-application to your application seeking an extension of time.

MS FRANCIS:   Yes, your Honour.  Thank you.

HER HONOUR:   Well, I will make that change that service of the copy affidavit together with the exhibits be by noon on 20 September 2012.

MR MITCHELL:   If your Honour pleases, thank you.

MS FRANCIS:   Thank you. 

HER HONOUR:   Very well, those are the orders.  Nothing further? 

MR MITCHELL:   Nothing further, your Honour.

AT 10.30 AM THE MATTER WAS ADJOURNED UNTIL WEDNESDAY, 26 SEPTEMBER 2012