Kuehne and Anor v Warren Shire Council

[2013] HCATrans 90

[2013] HCATrans 090

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S218 of 2012

B e t w e e n -

PETER KUEHNE

First Applicant

DYLAN KUEHNE BY TUTOR PETER KUEHNE

Second Applicant

and

WARREN SHIRE COUNCIL

Respondent

Summons for reinstatement

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 26 APRIL 2013, AT 10.28 AM

Copyright in the High Court of Australia

MR J.D. CAIRN:   May it please the Court, I appear for the applicants.  (instructed by Herbert Weller Solicitor)

MR M.E. DOWN:   If your Honour pleases, I appear for the respondent.  (instructed by DLA Piper Australia)

HIS HONOUR:   Mr Cairn, this is an application for an extension of time?

MR CAIRN:   Yes, your Honour.

HIS HONOUR:   Indeed, reinstatement.

MR CAIRN:   Yes, there are two orders I would seek.

HIS HONOUR:   Now, you move on the summons filed 6 March 2013?

MR CAIRN:   Yes, your Honour.

HIS HONOUR:   You read in support an affidavit of Jacqueline Ann Barck.

MR CAIRN:   Yes.

HIS HONOUR:   Sworn ‑ ‑ ‑

MR CAIRN:   On 5 March 2013.

HIS HONOUR:   Yes, thank you.

MR CAIRN:   It was filed 6 March and in that affidavit Ms Barck also deposes and refers to her affidavit filed 14 August 2012.  I would seek to read that as well, your Honour.

HIS HONOUR:   Is there any objection?

MR DOWN:   No, your Honour.

HIS HONOUR:   Is the application opposed?

MR DOWN:   Neither opposed nor consented, your Honour.

HIS HONOUR:   Yes, thank you.  Mr Cairn, I have read your helpful written submissions.  I really just have a question about the position of Mr Weller.  Is he in court today?

MR CAIRN:   He is.  I am instructed he is in a criminal matter today and is unavailable.

HIS HONOUR:   Is there any reason why the affidavit in support of the indulgence that is sought comes from his clerk rather than from him?

MR CAIRN:   My instructions are that it was done on the advice of counsel.

HIS HONOUR:   Is it the same counsel to whom the apology is given?

MR CAIRN:   I think so, your Honour, yes.  Yes is the answer, and the circumstances are that Ms Barck is the person who has the day‑to‑day running of the file and she was the person who had the communications with the people she deposes to, having communications with the affidavits.

HIS HONOUR:   Thank you.  I do not need to hear from you further.

MR CAIRN:   Thank you, your Honour.

HIS HONOUR:   The applicants move on a summons filed on 6 March 2013.  They seek reinstatement of their application for special leave to appeal which was deemed to be abandoned by operation of rule 41.13.  The decision sought to be appealed from was given on 16 April 2012.  The application for special leave to appeal was filed out of time on 14 August 2012.  The application was amended on 27 August 2012 to seek an order that compliance with the time for filing the application be dispensed with.

The applicants filed a summary of argument and draft notice of appeal on 11 September 2012 and the respondent filed a summary of argument on 27 September 2012.  Application books were required to be filed by the applicants on 31 October 2012, which is now nearly six months ago.  No application books were filed and the application was deemed to be abandoned on 14 February 2013.

Mr Cairn, who appears for the applicants on the motion, reads in support of the application for reinstatement affidavits of Ms Jacqueline Ann Barck.  Ms Barck is a clerk employed by Mr Herbert Weller, the applicant’s solicitor on the record.  Ms Barck deposes to various reasons said to explain the default that has occurred.  Those reasons include that she incorrectly calculated the date for deemed abandonment, certain personal commitments, that Mr Weller’s office was busy, that counsel were busy and that Mr Weller’s office closed over a Christmas/New Year period.  The affidavit contains an apology from Ms Barck to the Court, to the applicants and to Mr Weller for her tardiness. 

Responsibility to a party and to the Court for compliance with the High Court Rules lies with the solicitor on the record.  If there is to be an explanation or apology to the Court for non‑compliance with the High Court Rules based on delay within the solicitor’s office it is ordinarily to be expected to come from the solicitor.

None of the reasons advanced by Ms Barck in her affidavit fully explains the default in compliance that has occurred in the present case, not least because almost all of them are directed to the period after 31 October 2012 when the application books were due to be filed in accordance with the rules.  Despite the unsatisfactory explanation for the delay, it would be unfair to deprive the applicants of their opportunity to be heard on the application for special leave to appeal merely because of the default of their solicitor.  The applicants ask only that they be given a further period of seven days within which to file the application books.  The respondent neither supports nor opposes the application for reinstatement.  I propose to order the reinstatement sought.

Now, before I make orders, what do we do about costs?

MR DOWN:   It is our application, your Honour, that rather than the costs that are sought in the summons that the applicants be ordered to pay the respondent’s costs in relation to the summons but that, given the circumstances revealed in the affidavit evidence before your Honour, there be an order that that the plaintiff’s or the applicant’s solicitor indemnify the applicants in respect of that order.

MR CAIRN:   I cannot resist such a costs order, your Honour, given the circumstances and the evidence before the Court.

HIS HONOUR:   Thank you.  I make the following orders on the summons:

1.The amended application for special leave to appeal dated 27 August 2012 be reinstated, notwithstanding its deemed abandonment by operation of rule 41.13.

2.The time fixed for the filing of application books by rule 41.09.8 be enlarged pursuant to rule 4.02 to Friday, 3 May 2012.

3.The applicants pay the costs of and incidental to the summons filed on 6 March 2013.

4.Mr Herbert Weller, the applicants’ solicitor on the record, indemnify the applicants for the costs ordered by order 3.

Thank you.  The Court will now adjourn.

AT 10.37 AM THE MATTER WAS CONCLUDED