Hall & Ors v City of Burnside & Ors

[2007] HCATrans 424

[2007] HCATrans 424

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A23 of 2006

B e t w e e n -

GRANT HALL, JILL HALL AND STEPHEN HALCROW

Applicants

and

CITY OF BURNSIDE

First Respondent

CITY APARTMENTS PTY LTD

Second Respondent

KATNICH DODD

Third Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 9 AUGUST 2007, AT 9.30 AM

(Continued from 8/8/07)

Copyright in the High Court of Australia

MR M.W. CLISBY:   If the Court pleases, I appear for the first and second applicant.  (instructed by Mark Clisby)

MR B.R. HAYES, QC:   If the Court pleases, the first respondent, the Council, prior to submitting an appearance I am instructed to seek leave to appear today just in the event that if any matter arises pursuant the Council I may be of assistance.  (instructed by Griffin Hildtich)

MR W.J.N. WELLS, QC:   May it please the Court, I appear with my learned friend, MR M.J. RODER, for the second respondent.  (instructed by Clelands)

GLEESON CJ:   Thank you.  Mr Clisby, do you have some application to make in relation to the order of this matter in the list?

MR CLISBY:   Yes, your Honour.  My leader is on his way.  I understand he rang chambers this morning and I was wondering respectfully – my instructions are if it could be held in the list for a short while and if ‑ ‑ ‑

GLEESON CJ:   You mean put down to the end of the list?

MR CLISBY:   Yes.

GLEESON CJ:   What is your attitude to that, Mr Wells?

MR WELLS:   We have no objection to that.

GLEESON CJ:   All right.  Then the matter that is listed as No 1 will be taken as matter No 3 and we will proceed with matter No 2.

AT 9.39 AM SHORT ADJOURNMENT

UPON RESUMING AT 10:56 AM:

GLEESON CJ:   Yes, Mr Clisby.

MR CLISBY:   If the Court pleases.  Unfortunately my leader has been unable to come so I will step into the breach.  First of all, your Honours, pursuant to rule 3 I seek leave to file an applicant’s supplementary summary of argument that was filed on, I think, 1 August.

GLEESON CJ:   Yes, we have that.

MR CLISBY:   If I could just seek leave.

GLEESON CJ:   Yes.  Is that opposed?

MR WELLS:   Yes, that is opposed.

GLEESON CJ:   It is opposed?

MR WELLS:   Yes, your Honour.

GLEESON CJ:   Why would we take up time arguing about that, Mr Wells?

MR WELLS:   We indicated in a filed response to that that we opposed but we offered submissions as well.

GLEESON CJ:   You have that leave and we have those documents, yes.

MR CLISBY:   I have also handed up to the Court a full copy of rule 98 and also there is a supplementary summary of argument.

GLEESON CJ:   At some stage along the line there was some suggestion that this rule was invalid, but that seems to have disappeared from the picture.

MR CLISBY:   No, I will be arguing that section 47 of the Limitations of Actions Act actually overrides rule 98.06.

GLEESON CJ:   Was that argued in the Full Court?

MR CLISBY:   I am unsure whether it was or not.  It is certainly part of – I mean, I rely on ‑ ‑ ‑

GLEESON CJ:   Where is it dealt with in the reasons of the Full Court?

MR CLISBY:   If I could have your Honour’s indulgence.  It does not appear that it was, your Honour.

GLEESON CJ:   It was not argued?

MR CLISBY:   It does not appear that it was raised or argued.  It is in the application for special leave, so I rely on the application for special leave.  There is an applicant’s summary of argument that is in the court book.  I

also rely on the other written material, which is the reply.  I will be reasonably brief.  It is our submission that the Full Court speculated but did not decide whether or not it would be an abuse of process for the applicants to proceed for declarations, injunction.  Judicial review proceedings were not served.  That point had to be decided in order to determine the weight to be given to the prejudice to the respondents or any of them. 

We rely on Jackamarra v Krakouer that the limitation is fixed by rule of court, not statute and the first part of rule 98.06 is, “Subject to any enactment, or order of the Court granting an extension of time” and we say that section 47 would override that.  That section is contained in the application for special leave at page 43 of the application book.  Subsection (2)(d) says:

any other action to the nature or purpose of which the limitation is, in the opinion the court, essential.

We say that rule 98.06 is not, in the opinion of the court, to be considered to be essential.  The essence of section 47 is that:

Where any Act, regulation, rule or by-law limits the time within which an action to which this section applies may be brought to a period of less than twelve months from the time the cause of action arises, then, notwithstanding that limitation, that action may be brought at any time within twelve months from the time the cause of action arises.

In this particular case it was well within 12 months.  Unless there are any other points your Honours would like me to address, these are our submissions.  We rely on, as I said before, the written material and the application book, the special leave to appeal application, first and second applicants’ summary of argument and the reply.

GLEESON CJ:   Thank you, Mr Clisby.  We do not need to hear you, Mr Wells or Mr Hayes.  We think that there are insufficient prospects of success of an appeal in this matter to warrant a grant of special leave to appeal and the application is dismissed with costs.

MR WELLS:   Your Honours, may I raise the question of costs of the separate application for the adjournment last night?  The second respondent seeks the costs of that application.

MR CLISBY:   The first respondent does not seek costs.

GLEESON CJ:   We have nothing to add to the order we made.

MR WELLS:   May it please the Court.

GLEESON CJ:   We will adjourn until 10.15 am on Tuesday, 28 August 2007 in Canberra.

AT 11.03 AM THE MATTER WAS CONCLUDED