Jordan v Baronglow Pty Ltd & Ors

[2010] HCATrans 73

[2010] HCATrans 073

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A14 of 2009

B e t w e e n -

NEVILLE JORDAN

Applicant

and

BARONGLOW PTY LTD NOW KNOWN AS ACN 081472102 PTY LTD

First Respondent

DAVID GRAHAM THOMAS

Second Respondent

RONALD HOWARD WILLING

Third Respondent

Summons for reinstatement

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON WEDNESDAY, 24 MARCH 2010, AT 9.57 AM

Copyright in the High Court of Australia

MR N. JORDAN appeared in person for the applicant.

MR D.G. THOMAS appeared in person for the second respondent.

HER HONOUR:   Yes, Mr Jordan.

MR JORDAN:   This is my application, your Honour, to extend time for three days to file the summary of argument and draft notice of appeal and I rely on my affidavit in that respect.  The documents are completed and ready.  They have, in fact, been ready since one day after the – well, they have been ready within the time.  I had a motor vehicle accident on 20 November 2008, a fairly serious one, where a truck ran into the rear of a stationary vehicle I was in at about 60 kilometres per hour.  I have been given post‑traumatic stress disorder drugs by my treating psychiatrist, and I was taking a drug Efexor and the dose increased at this time and was very adversely affected by nausea and, as a result, I tried to file my documents one day late and they were sent back to me as out of time, so I have made this application.

I understand, although I do not actually know, that it has sat on the file for some time waiting for a date to be set because the order of Justice Hayne is conditional and the decision on my application for special leave has now been delivered, so it is not conditional any more.

HER HONOUR:   No.  On that application their Honours ordered you to pay the second respondent’s costs of the summons before Justice Hayne on 12 August 2009.

MR JORDAN:   Yes, that is right.

HER HONOUR:   That was part of the decision.

MR JORDAN:   Justice Hayne made the costs order costs in the cause.

HER HONOUR:   Yes.  That was followed by the hearing on 11 March 2010, as you have just put to me.

MR JORDAN:   Yes.

HER HONOUR:   Yes, thank you.

MR JORDAN:   I really do not have any more to add than what is contained in my application and affidavit, your Honour, unless there is any specific question you wish to address to me.

HER HONOUR:   Thank you, Mr Jordan.  Yes, Mr Thomas.

MR THOMAS:   If your Honour pleases, I filed an outline of my submissions late last week and I expect that your Honour has seen them.  The essence of my submission is that the application for leave to appeal, being the application filed on 14 September 2009, was so devoid of substance and so lacking in any prospect of success that it should not be revived on this summons, no matter what ground the applicant relies upon.  So my submission is that this summons should be dismissed.  Those are my submissions, if your Honour pleases.

HER HONOUR:   Are you making any application in relation to costs, if that order is made?

MR THOMAS:   I would apply for costs, yes, your Honour.

HER HONOUR:   Yes, very well.  Anything in reply, Mr Jordan?

MR JORDAN:   Yes, your Honour.  What Mr Thomas’ submission amounts to is that the issue of solicitor and own client costs, that is the instance where a solicitor purports to be a solicitor for himself, is not sufficient of an issue to be ventilated in the Court.  In my respectful submission, the judgment in Cachia v Hanes makes that an impossible – that is referred to in the principal documents of mine – makes that an impossible submission to make.

HER HONOUR:   Thank you, Mr Jordan.

The applicant in this matter is unrepresented. He seeks leave to reinstate his application filed on 14 September 2009 for leave to appeal part of the decision of a Justice of this Court, Justice Hayne, recorded [2009] HCATrans 195. That application was deemed abandoned as at 12 October 2009 pursuant to rule 41.10.4 of the High Court Rules 2004 by reason of the applicant’s failure to file and serve a notice of appeal and written case within 28 days of filing the application. The applicant attended the High Court Registry and attempted to file his summary of argument and notice of appeal on 13 October 2009 in Adelaide. However, the Registry did not accept the documents for filing.

On 12 November 2009 the applicant filed a summons for an application to extend the time under rule 41.02.2 within which to file his summary of argument and notice of appeal.  It is that application with which the Court is presently concerned.  The extension of time sought in the summons would effectively result in a reinstatement of the application for leave to appeal which has been deemed abandoned. 

The applicant’s application for leave to appeal is directed towards the order as to costs made by Justice Hayne on 12 August 2009.  The matter which came before Justice Hayne on that date arose from a summons filed on 24 July 2009 seeking an extension of time in relation to a special leave application lodged by the applicant against the orders of the Full Court of the Supreme Court of South Australia, Justices Duggan, Vanstone and David, made on 2 June 2009.  The applicant sought first an order that the respondent in that matter, the second respondent in this matter, Mr Thomas, file and serve a bill in taxable form pertaining to the costs ordered by the Full Court of the Supreme Court of South Australia on 2 June 2009 and, second, an extension of time for the filing of his outline of argument and notice of appeal.

Justice Hayne declined to make the first order sought by the applicant, however, did extend the time in which the applicant could file his outline of argument and notice of appeal on the basis of an affidavit in which the applicant deposed that he was suffering a number of health issues which affected his ability and were expected to be likely to continue to affect his ability to prepare an adequate outline of argument and notice of appeal.  The extension was granted until 11 September 2009.  Justice Hayne ordered that the costs of the summons be costs in the special leave application.  It is this order with the application, which the applicant is presently seeking to have reinstated, is concerned. 

On 11 March 2010, following filing of the applicant’s written submissions, the applicant’s special leave application was dismissed by Justices Gummow and Kiefel recorded at [2010] HCASL 33 and their Honours ordered the applicant to pay the second respondent’s costs of the summons before Justice Hayne on 12 August 2009.

As the costs of the summons before Justice Hayne on 12 August 2009 have already been the subject of an order by Justices Gummow and Kiefel, any appeal in respect of the costs order of Justice Hayne would be futile and of no practical effect. 

In all the circumstances, I decline to extend the time in which the applicant may file his summary of argument and notice of appeal and, hence, decline to reinstate the application for leave to appeal.  The orders I make are:

1.The applicant’s application on summons dated 12 November 2009 is dismissed.

2.The applicant is to pay the costs of the second respondent in this application.

AT 10.07 AM THE MATTER WAS CONCLUDED