Maher v Commonwealth Bank of Australia & Ors

[2007] HCATrans 436

[2007] HCATrans 436

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M105 of 2006

B e t w e e n -

DENNIS MAHER

Applicant

and

COMMONWEALTH BANK OF AUSTRALIA

First Respondent

GREG FIRTH

Second Respondent

GRAY & JOHNSON (A FIRM)

Third Respondent

Summons for reinstatement

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 16 AUGUST 2007, AT 9.44 AM

Copyright in the High Court of Australia

MR R.D. SHEPHERD:   If the Court pleases, I appear on behalf of the respondents.  (instructed by Commonwealth Bank Group Legal Services)

HER HONOUR:   Yes, thank you, Mr Shepherd.  There does not appear to be an appearance on behalf of the applicant.  I invite you to make your submissions, Mr Shepherd.

MR SHEPHERD:   As I understand it, a fax has been sent to the Court which indicates that the applicant is unable to appear today because he is unwell.

HER HONOUR:   Yes.

MR SHEPHERD:   I was going to advance the case that the application should be dismissed but, in all the circumstances, obviously if he is unwell that is a matter which should be taken into consideration.

HER HONOUR:   What I had in mind, Mr Shepherd, was this, was to grant a further 14 days, technically 15 days because that takes it till Friday, to give the applicant an opportunity to file a draft notice of appeal and summary of argument but in default that the application for special leave to appeal be deemed abandoned, so a default provision is there together with the extension.  I was also minded to order that the applicant pay the costs of your clients for both the application today and the previous application for an extension of time, otherwise make no further orders.

MR SHEPHERD:   I find it hard to contend that that is not a sensible way to proceed given that the applicant has detailed in his affidavit that basically there was a conflict of interest, or an anticipated conflict of interest, and I could not really put anything else against that save to say that there was extra delay, so I am content with those orders.

HER HONOUR:   Thank you very much, Mr Shepherd. 

On 28 July 2005 Federal Magistrate McInnes ordered that a bankruptcy notice served on the applicant be set aside.  The order was made by consent.  The first respondent sought costs against the applicant on the basis that the proceedings had been adjourned a number of times.  The first respondent was partially successful and costs of $2,000 were awarded against the applicant.  The applicant appealed that decision to a judge of the Federal Court of Australia, Justice Marshall.  On 11 July 2006 his Honour dismissed the applicant’s appeal. 

The applicant filed an application for special leave to appeal against that decision in this Court on 7 August 2006.  On 4 September 2006 he filed a summons seeking an extension of time in which to file and serve his submissions.  On 4 May 2007 I granted him an extension of time and ordered that if the applicant filed his draft notice of appeal and written case in support of his application for special leave to appeal by 4 pm on 8 June 2007 his application for special leave to appeal was not to be deemed abandoned.  On 8 June 2007 the applicant filed a summons seeking a further extension of time.  You appear for the first respondent, do you not, Mr Shepherd?

MR SHEPHERD:   I actually appear for all the respondents.

HER HONOUR:   All respondents; very well.  The respondents who are represented by Mr  Shepherd of counsel on this application oppose the application.  The applicant has this morning sent a facsimile to the Registrar advising that he is unwell and is unable to attend the hearing and the respondents have been in receipt of the same facsimile.  He requests that the hearing be postponed for 14 days.

A facsimile has also been received from Ms Moorhouse-Perks, the solicitor the applicant indicated would act for him.  She states that she received his letter only this morning and is yet to assess the case.  She has not yet decided whether to accept the applicant’s instructions until she has done so.  Given the extension of time already granted to the applicant and the costs already incurred by the respondents, another substantial extension of time would not be appropriate.  However, in the circumstances I will grant a short extension which in substance is not opposed by counsel for the respondents.

I order that the applicant file and serve a draft notice of appeal and summary argument by 4 pm on Friday, 31 August 2007.  In default the application for special leave to appeal be abandoned.  The applicant must pay the costs of the respondent for both this application and the application heard before me on 4 May 2007.

MR SHEPHERD:   I would seek a certificate for counsel.

HER HONOUR:   I do not think that is necessary, Mr Shepherd.

MR SHEPHERD:   Thank you.

HER HONOUR:   My understanding is there has been a rule change and it is no longer necessary to make that application.

MR SHEPHERD:   Thank you, your Honour.

AT 9.49 AM THE MATTER WAS CONCLUDED