Maher v National Australia Bank Ltd

[1994] HCATrans 434

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M14 of 1994

B e t w e e n -

ELIZABETH JOANNE MARIE MAHER

Respondent/Applicant

and

NATIONAL AUSTRALIA BANK LIMITED

Applicant/Respondent

Application to strike out

application for special leave

to appeal

DAWSON J

(In Chambers)

Maher 1 16/8/94

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 16 AUGUST 1994, AT 9.34 AM

Copyright in the High Court of Australia

MR M. BEVAN-JOHN:  May it please the court, I appear on

behalf of the National Australia Bank which is the

applicant in this particular summons, your Honour.

(instructed by Russell Kennedy)

HIS HONOUR:  Yes. Mrs Moorhouse-Perks.

MR A. SAMUEL:  (of Alwyn Samauel) I appear for the purpose

of not appearing in the sense that since 8 June I

have been asked in writing by my client to hand the

matter over to Mrs Moorhouse-Perks who has this
morning filed a notice of change of practitioner in

which I cease to act and in which she begins to

act.

HIS HONOUR:  What is the purpose of your appearance,

Mr Samuel.

MR SAMUEL:  Mainly because I am told that I gave the court

an assurance some time ago that I would have the

papers ready for this occasion but I have been

three times in hospital since that occasion and

have not physically been able to attend to the

matter.

HIS HONOUR:  Very well. Perhaps we will hear the

application and we will consider anything that you

have to say should the occasion arise.

MR SAMUEL:	May it please your Honour.
HIS HONOUR:	Now, Mrs Moorhouse-Perks, you appear for?

MRS K. MOORHOUSE-PERKS:  (of Katherine Moorhouse-Perks) I

am appearing for the applicant in the appeal, that

is Elizabeth Maher. I do not necessarily agree

with what my colleague says regarding 8 June 1994;

in fact, my understanding of my role in this

proceeding commenced yesterday.

HIS HONOUR:  Well now, you filed a notice of change of

solicitor, have you?

MRS MOORHOUSE-PERKS:  Yes, I have, subject to Mr Samuel

being given leave to withdraw at this late stage.

HIS HONOUR:  Well, there is no need for leave to withdraw,

is there, under order 7? Order 7, rule 2 provides

that you file a notice of change of solicitor and

serve a copy of the notice on each other party to

the proceeding. Well, there is only one other

party, the National Bank. Now, has that been done?

MRS MOORHOUSE-PERKS:  No - well, rather, notice has been

sent by facsimile transmission~ As at the moment

it has not been served in accordance with the

Maher 2 MRS MOORHOUSE-PERKS 16/8/94

rules. It was only signed by me. I now have a

notice which has been signed by Mr Samuel and the

client.

HIS HONOUR:  But you do not need one signed by Mr Samuel,

do you?

MRS MOORHOUSE-PERKS:  I thought that I would just - I

possibly do not, your Honour. However, I felt that

in the circumstances and the short notice that I

had it would be better to have all parties aware of

what was going on, including Mr Samuel.

HIS HONOUR:  Yes. Well, have you received it, Mr Bevan-

John.

MR BEV.AN-JOHN:  Your Honour, my instructing solicitors did

receive this morning a copy of a notice of change

of practitioner dated this day.

HIS HONOUR:  Very well. All right, then. So you appear

now as the solicitor for the applicant in the

application for special leave?

MRS MOORHOUSE-PERKS:	Thank you, your Honour.
HIS HONOUR:	Well, Mr Bevan-John.
MR BEV.AN-JOHN:	That is my understanding, your Honour.
HIS HONOUR:	Yes. Well now, you are applicant in these

proceedings?

MR BEVAN-JOHN:  I appear as counsel for the applicant in

these proceedings. The proceeding - sorry, the

application which is before your Honour is a

summons seeking a number of alternative orders.

The summons was filed in the court on 17 June and

that summons seeks first of all an order that the

application, that is the application for special

leave which has been filed herein by Mrs Maher, be

struck out as it is not properly constituted; in

the alternative it seeks an order for dismissal for

want of prosecution and, again, in the alternative such further or other order as the court may think appropriate.

Three affidavits have been filed in support of

that summons; only two of them are relevant, the

third not being so, given Mrs Moorhouse-Perks'

appearance; the two affidavits which were filed by

my instructing solicitor, Ms Bennett, and they put
matters simply before the court to say in essence

that, first of all, papers were lodged with the

High Court and copies of those were served on us

purporting to initiate the procedure for bringing

on a special leave application under order 69A.

Maher

These papers we would say are highly defective

insofar as they do not even in the most bald sense

comply with the requirements of the court.

That, of course, is not necessarily fatal

since any non-compliance is a matter which can be

excused by the court, but in view of the events

which surround those documents, that is an

undertaking given by Mr Samuel that he would

supplement the deficiencies in the documents and,

in view of that and the failure to do so since

then, it was thought appropriate to bring the

matter to a head.

The problem in which the application finds

itself, your Honour, is a simple one. Had Mrs

Maher's application for special leave, or had that application certainly been brought up to the stage

of appeal books and indexes we would find ourselves

taking advantage of the deemed discontinuance

position. Of course, we have not got that far and
so we really have to rely upon the court's powers

under its want of - striking out for lack - want of

prosecution or, alternatively, its inherent powers

which have been invoked in a couple of cases before

single justices in the past to bring some order to

the proceeding and we would say to bring it to an

end.

HIS HONOUR:  If the documents which are required under

order 69A, rule 3, were filed, then that would

solve the problem of there being inadequate

documentation, would it not?

MR BEVAN-JOHN:	That is so, your Honour.
HIS HONOUR:	Yes.
MR BEVAN-JOHN:	And it would then proceed as normal, a

special leave application being made in the due

course, etcetera. The question really is, and I

have prepared argument obviously on the basis that

I set out to your Honour, but Mrs Moorhouse-Perks

has appeared and I understand she has filed for - I

understand that certainly she has prepared, and I

believe there is an affidavit she has filed which I

think should be brought before your Honour. It

simply says that, as I understand it, it is certain

that the deficiencies can be supplemented this

afternoon and the rest can be taken further by

counsel.

I read the relevant parts to your Honour

simply with a view to some brevity.	In this
application - - -

HIS HONOUR:  I have read the affidavit, Mr Bevan-John.

Maher 4 16/8/94

MR BEVAN-JOHN:  If you have read her affidavit your Honour

will see then that what she proposes is to bring

the matter to some semblance of order and in

theory, of course, if she was to file the

documentation that she says she will file by today

then it might be possible for us to rely in the

future upon the deemed discontinuance under order

69A, rule 11.

HIS HONOUR:  Well, I should fix a time for the filing of

all the documents. To take that course I should

fix a time for the filing of all the documents

under order 69A, rule 3. Have you anything to say

as to the time that I should give?

MR BEVAN-JOHN:  What I would be saying to your Honour is if

you were minded to do that - or the first question

I guess is: is there any point in us proceeding

with our want of prosecution application now,

granted the appearance of the - of Mrs - - -

HIS HONOUR:  Unless you convince me otherwise, I would be

minded to give some time for the filing of the

documents.

MR BEVAN-JOHN:  I think there is a reality in that, your

Honour. What I would like to do though is to ask

your Honour to consider, following the course that

McHugh J gave in the Gamester case and I have a

copy of that for the court if that assists, to

consider in the circumstances - and I hand to your

Honour a copy of it - the Gamester cases. Gamester

Pty Limited v The Rural Press Limited. The report

which I have, and I think it is the only one so

far, is volume 65 of the Australian Law Journal at

page 515.

This was a summons to dismiss for want of

prosecution in respect of which a special leave
application concerning a judgment of the full court

of the Federal Court given on 20 July 1990 where

this application came on 11 months later before

McHugh J. Now, the matter I would like to take

your Honour to is on the concluding page of the

report and it summarizes the position he found

himself in there. He said - I am reading from the

left-hand column, page 518, four lines up:

A period of 10 months has elapsed since the

application for special leave to appeal was

filed. The delay on the part of the

applicants cannot objectively be justified,

although in fairness to the applicants

they seem to have been acting under some

misapprehension that they had applications or

appeals on foot before the Legal Aid

Maher

Commission, and that in some way that operator does not stay a proceedings in this court.

Because of this latter factor his Honour said, in

the circumstances he thought that he should give

effect to the first order - sorry, he did not think

it appropriate to give effect to the dismissal for

want of prosecution orders, but then made orders

otherwise to make the matter proceed expeditiously.

What I would ask your Honour to consider is in

these circumstances doing what his Honour did in

the closing sentences of the report:

In the event that the applicants fail to

comply with the orders I have made, or any

part of them, the application for special
leave shall stand dismissed for want of

prosecution.

In effect a self-executing order.

HIS HONOUR:  I do not understand. He refers to order 69A

rule 4, and an affidavit.	69A rule 4 seems to
refer only to - - -

MR BEVAN-JOHN:  The rules have changed in a minor extent,

your Honour, insofar as -

HIS HONOUR:  Yes. Have I got the old one or the new one?

MR BEVAN-JOHN:  The rules were changed, which would apply

to this proceeding, to this special leave
application, rather than it in its latest form,

statutory rule number 324 of 1993 came in, and that

applies in respect of matters after 1 February

1994. That is when the rule came in. There was a

minor further amendment by statutory rule number 1

of 1994, which I do not think is of relevance to

this application. But insofar as we are dealing

with the amendment of order 69A, it is that

statutory rule number 324 of 1993 which may have

changed some of the matters before your Honour.

HIS HONOUR:  Well, what does rule 4 read now? How does it

read now?

MR BEVAN-JOHN:  Well, rule 4 deals with service, if I am

looking at the right rule. Yes, I am looking at

the right rule. Order 69A rule 4(1) provides for,

first of all:

1. a copy of the application under the

documents filed under rule 3.1 shall be served

within the time limited by rule 3.1 on each person who was a party to the proceeding in

the court below.

Maher 6

Then 4.2 provides for a copy to be served on the

prothonotary registrar or the proper officer of the

court below.

HIS HONOUR:  I see. It was McHugh J who was proceeding

under the old rule, not me. Yes, very well.

MR BEVAN-JOHN:  Yes. The reason why I would ask your

Honour to do a self-executing order in these

circumstances is A. we have got really pretty bad

delay, which is totally unexplained, and indeed, as

your Honour would have noted from my instructing

solicitor's affidavit material, letters requesting
the supplementing of the deficiencies, or curing of
the deficiencies in the documentation written on
several occasions, and no satisfactory response, or

no supplementing of those deficiencies in the

documentation. We are now proceeding on a wing and

a prayer from the - a promise, rather, from

Mrs Maher that she will rectify the situation in

the future.

But what I would like to avoid is this

situation simplicita. 1. She puts in the index

and the necessary documents for the purposes or

rule 6, that is the application book. 2. And this

is a situation where through no fault of my friend,

Mrs Moorhouse-Perks, she is unable to - or her

client has not instructed her to proceed further

with the appeal. We then have a discontinuance, or

an abandonment of the application under rule 11

deemed. The problem then is that - - -

HIS HONOUR:  Well, if you get an order in relation to the

documents which are required to be filed under rule

3, then the rules take over, and under order 11 the
application is deemed to have been abandoned if the

application books are not filed within the time

prescribed.

MR BEVAN-JOHN:  But then order 11 is exactly the vice I want

to avoid:  Unless the court or a justice otherwise orders.

I would prefer to have a situation where we are not

dealing with a possible non-compliance with the

rules and then coming back for further goes to get

further extensions. I would rather have a

situation, and I would urge it on your Honour to

do, to provide by an order in similar terms to that

of McHugh J so that if they do not do what the

rules say they shall do, they would be more than a

deemed dismissal or deemed abandon, there will be

an actual dismissal by virtue of the operation of

Maher

this ...... inaudible. . . . . fixing order in

the circumstances.

I think, with respect, your Honour, this is a

case, having looked at the affidavit material that

this would be appropriate in the circumstances and

I would urge that course on your Honour if you so

please.

HIS HONOUR: Yes. Yes, Mrs Moorhouse-Perks.

MRS MOORHOUSE-PERKS:  Your Honour, I do not think I am

actually in the position to comment in any great

substance to what my colleague has said. I am

happy and I believe I will be able to obtain

instructions to prepare the documents that are

necessary and I certainly have instructions to file

the documents necessary this afternoon that I have

set out in the affidavit and to proceed on a

timetable basis.

HIS HONOUR:	What time do you need - do you say you need for the filing of all the documents which are required
by rule 3?
MRS MOORHOUSE-PERKS:	I think I have set out that I need -

under rule 3 - a total of 28 days or rather 21 days

to have the statement under rule (e) and (f)

filed - or 3(3) and (f). However, I can also file

the papers by this afternoon.

HIS HONOUR: Well, now, what do you say as to Mr Bevan-

John's submission that not only should an order be

made in relation to the filing of the documents

under rule 3 but also that if the application book

is subsequently not filed within the time limited

the matter should stand dismissed?

MRS MOORHOUSE-PERKS:  Your Honour, I believe that the client

will be prosecuting this with diligence.	In which
to that order sought.
I will not be making any submission in opposition

HIS HONOUR:  Yes. I would have thought you would have said

that the rules provide adequately for that

situation.

MRS MOORHOUSE-PERKS: I am sorry, your Honour.

HIS HONOUR: Very well. Very well, thank you,

Mrs Moorhouse-Perks. Mr Bevan-Johns, do you have

anything to say as to what Mrs Moorhouse-Perks has

said?

MR BEVAN-JOHN:  No, your Honour, I do not. No, your Honour,

with respect, I simply press my submission.

Maher 16/8/94

HIS HONOUR:  Yes. I do not propose to make any order in

relation to the application books but I will order

that the applicant for special leave to appeal file

in the Melbourne office of the registry and serve

on the respondent by 4 pm on Wednesday, 31 August

1994, the documents referred to in Order 69A, rule

3, of the rules of court and I will further order

that in the event that the documents referred to

are not filed and served by that date the

application for special leave to appeal shall stand

dismissed.

MRS MOORHOUSE-PERKS:	Thank you.
MR BEVAN-JOHN:	I ask for my costs of the appearance today.
HIS HONOUR:	You cannot say much about that, can you,

Mrs Moorhouse-Perks?

MRS MOORHOUSE-PERKS:  No, because it is a late notice, I

understand.

HIS HONOUR:  Yes. Well, I will order that the application -

well, the applicant rather - for special leave to

appeal pay the respondent's costs of and incidental

to this application and I will certify for counsel.

Now, Mr Samuel, that really does not mean that the

court has any need to hear from you. That disposes

of the matter I think.

MR SAMUEL:  I appreciate it, your Honour, and appreciate the

indulgence.

HIS HONOUR: Very well. Is there anything else required?

MRS MOORHOUSE-PERKS:	No, thank you.
MR BEVAN-JOHN:	No, your Honour.

HIS HONOUR:  I will leave the bench.

AT 9.50 AM THE MATTER WAS ADJOURNED SINE DIE

Maher 9 16/8/94