Kelvin Gardner & Anor v Allan Michael Jorma Mattila BY His Litigation Guardian Teresa LATZER

[2015] HCASL 120

KELVIN GARDNER & ANOR

v

ALLAN MICHAEL JORMA MATTILA BY HIS LITIGATION GUARDIAN TERESA LATZER

[2015] HCASL 120
D2/2015

1. The respondent brought proceedings against the applicants in the Supreme Court of the Northern Territory of Australia (Southwood J) claiming, amongst other relief, damages for breach of trust, fiduciary duty, statutory duty and negligence.  The first applicant counterclaimed for damages for breach of contract, quantum meruit for work performed and a declaration of constructive trust.  The respondent was substantially successful before Southwood J.  The first applicant succeeded on his quantum meruit claim. 

2. The applicants appealed against Southwood J's orders to the Court of Appeal of the Northern Territory of Australia (Kelly, Barr and Hiley JJ).  The respondent cross-appealed in relation to those of his claims that were dismissed by Southwood J.  The Court of Appeal unanimously dismissed the applicants' appeal and allowed the respondent's cross-appeal.

3. The applicants now seek special leave to appeal from the whole of the judgment of the Court of Appeal. They do not have legal representation and their application falls to be dealt with under r 41.10 of the High Court Rules 2004 (Cth). The application was not filed within time[1] and the applicants ask that compliance with the time limit be dispensed with[2].  The first applicant has filed an affidavit providing a satisfactory explanation for the delay.  However, for the reasons to be given, there is no utility in making an order dispensing with compliance with the Rules.

   [1]High Court Rules 2004 (Cth), r 41.02.1.

   [2]High Court Rules 2004 (Cth), r 41.02.2.

4. The first four proposed grounds of appeal (grounds 2(a)–(d)) depend upon acceptance of an assertion that the respondent's solicitor filed in the Court of Appeal two documents, purportedly on the first applicant's behalf, containing false particulars of his grounds of appeal.  Appeals to this Court are confined to the correction of error in the judgment below.  This allegation was not raised by counsel who appeared for the first applicant in the Court of Appeal and no application has been made to that Court to re-open the appeal in order to deal with it. 

5. The remainder of the proposed grounds of appeal challenge concurrent factual findings.  No proposed ground raises a question of law suitable for the grant of special leave.  An appeal to this Court would have insufficient prospects of success. 

6. The application is dismissed.

7. Pursuant to r 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
13 August 2015 S.J. Gageler