Mackey v Mackey

[2007] HCATrans 271

[2007] HCATrans 271

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S357 of 2006

B e t w e e n -

DARREN JOHN MACKEY

Applicant

and

SUZANNE JOY MACKEY

Respondent

Application for reinstatement

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 28 MAY 2007, AT 9.47 AM

Copyright in the High Court of Australia

MR R.S. BELL:   May it please the Court, I appear for the applicant.  (instructed by The Argyle Partnership)

MR M.P. KEARNEY:   May it please the Court, I appear for the respondent.  (instructed by Mark Brown & Associates)

HIS HONOUR:   Thank you.  I have read all the material that has been filed.  I think I should ask you, Mr Kearney, why the application for reinstatement should not be granted.

MR KEARNEY:   I will freely admit, as I must, your Honour, that I cannot point to any relevant prejudice to my client.  The most that can be submitted in opposition to it is that there is very little prospect of success on the special leave application, but again I accept that that is not necessarily determinative, given the indulgence that is sought.

HIS HONOUR:   Yes.  Thank you, Mr Kearney.

MR KEARNEY:   Thank you, your Honour.

HIS HONOUR:   The applicant was the husband in proceedings in the Family Court of Australia.  At trial Justice Coleman ordered the wife to pay $98,205.21 to her husband, whereupon the husband was to transfer to the wife his interest in the former matrimonial home.  The wife appealed.  On 20 September 2006 the Full Court, Chief Justice Bryant and Justices Finn and Boland allowed the appeal.  The Full Court ordered the husband to transfer his interest without his wife having to make any payment.

The husband then filed an application for special leave to appeal to this Court.  That application has been deemed under rule 41.13.1 of the High Court Rules to have been abandoned because the husband’s solicitor failed to file the application books within six months of the filing of the special leave application.  The husband’s summary of argument and draft notice of appeal have been filed.  On 2 May the husband filed a summons seeking reinstatement of his application for special leave to appeal.

The solicitors for the wife had advised earlier that they would oppose any application for reinstatement.  The solicitor for the husband has filed an affidavit explaining that the relevant failure lay at her door.  She mistakenly entered the date for compliance in her diary as 18 May 2007.  In fact, it should have been 18 March 2007.  She had not completed a file review of this matter by the time the application was deemed abandoned on 18 April 2007, the reason being that she had moved her practice from one firm of solicitors to another after the first had merged with another firm and ceased to practice family law.

While these events are regrettable, they are the kinds of events which can easily happen in professional practice.  They are not events for which the husband was personally responsible.

It is undesirable to express a view as to the prospects of success of the special leave application, were it to be reinstated.  Counsel for the first respondent responsibly conceded that although he submitted they were poor they were not non‑existent.  There must be some prospects of success, if only because Justice Coleman found in favour of the husband at first instance.

In these circumstances, the order for reinstatement should be made and the applicant will have four weeks to file and serve the application books.  Now, costs.  Ordinarily, Mr Bell, this is the sort of matter in which your client would have to pay the costs but I must ask Mr Kearney whether there should not be, in effect, no order as to costs because of the fact that it has been opposed.  It is the solicitors for the respondent.

MR KEARNEY:   I accept that costs are sought, your Honour.  They are sought on the basis that the indulgence is that being sought by the applicant and in those circumstances the respondent is entitled to them.

HIS HONOUR:   But if your side had not opposed the application it would not have been necessary to have this hearing.  It could have been done by consent order.

MR KEARNEY:   I certainly accept that, but it is a position where the respondent elected to take this course, as they are entitled to do, were in effect denied the opportunity, I suppose, to adopt another course by timing and by that I mean that the summons and supporting material were served, I understand, on 17 May limiting the time that the respondent had available to seek advice and respond to the summons other than through the course of the correspondence that your Honour is aware of.

HIS HONOUR:   I am not actually aware of, I think, any correspondence.  I am only aware of the affidavit of Glenda Ann Laurence.

MR KEARNEY:   By virtue of that affidavit, that is the correspondence that I at least inferred your Honour was aware of.  It is referred to in there rather than annexed to it.

HIS HONOUR:   Yes.

MR KEARNEY:   Unless I can assist you further, your Honour.

HIS HONOUR:   Yes, thank you.

While ordinarily the applicant would have to pay the costs of the summons, in view of the necessity for this having arisen from his solicitor’s conduct, it seems to me that the refusal of the respondent wife to consent to reinstatement may be described as unreasonable.  It is true that the affidavit explaining the circumstances was not to hand at the time when the attitude of opposition was first indicated.  If it were, there might be an argument for the respondent having to pay the costs, but in all the circumstances, an appropriate order seems to be that there should be no order as to the costs of the summons.

Accordingly, I order:

1.That the applicant’s application for special leave to appeal be reinstated;

2.That the applicant file and serve the application books within four weeks.

Mr Kearney, I did not ask you whether that period of time was suitable from your point of view.  Very well, those will be the orders.  Thank you, Mr Bell and Mr Kearney.

AT 9.54 AM THE MATTER WAS CONCLUDED