Marsden v Unimin Australia Limited, Price v Resolute Resources Limited

[2005] HCATrans 207

[2005] HCATrans 207

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P57 of 2004

B e t w e e n -

ALAN DAVID MARSDEN

Applicant

and

UNIMIN AUSTRALIA LIMITED

Respondent

Office of the Registry
  Perth  No P58 of 2004

B e t w e e n -

JOHN IVOR PRICE

Applicant

and

RESOLUTE RESOURCES LIMITED

Respondent

Summons

HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON TUESDAY, 19 APRIL 2005, AT 4.44 PM

Copyright in the High Court of Australia

__________________

MR J.R. CRIDDLE:   If it please, your Honour, I appear for the applicant in each of the applications.  (instructed by Bradford & Co)

MR H.M. O’SULLIVAN:   May it please the Court, I appear for the respondent in application P57/2004.  (instructed by Srdarov Richards Burton)

MR M.J. McCUSKER, QC:   May it please the Court, I appear with my learned friend, MS S.E. HARRISON, for the respondent in application P58/2004.  (instructed by Mallesons Stephen Jaques)

HIS HONOUR:   Thank you.  You, Mr Criddle, rely on an affidavit of Timothy Phillip Heard filed on 8 April in the first matter, and another affidavit of the same date in the second matter?

MR CRIDDLE:   That is correct, your Honour.

HIS HONOUR:   Mr O’Sullivan and Mr McCusker, do you have any objections to those affidavits?

MR O’SULLIVAN:   No, your Honour.

MR McCUSKER:   No objection, your Honour.

HIS HONOUR:   You do not wish to cross‑examine Mr Heard?

MR McCUSKER:   No I do not, thank you.

HIS HONOUR:   Mr McCusker, you rely on an affidavit that was filed today I think of Sarah Elizabeth Harrison?

MR McCUSKER:   I do, your Honour, yes.

HIS HONOUR:   Mr Criddle, you do not object to that or wish to cross‑examine Ms Harrison?

MR CRIDDLE:   No, your Honour, I do not.

HIS HONOUR:   Can I just ask you this, Mr Criddle.  When precisely will it be possible to file and deliver the joint application book?

MR CRIDDLE:   By the end of this week, your Honour.

HIS HONOUR:   I see.

MR CRIDDLE:   My understanding is that it is now ready, so ‑ ‑ ‑

HIS HONOUR:   It could be done today if everything went well.

MR CRIDDLE:   Yes.

HIS HONOUR:   It certainly can be done by the end of the week?

MR CRIDDLE:   Certainly, yes.

HIS HONOUR:   Mr O’Sullivan, can I ask you a question which I have also asked Mr McCusker.  The summonses each seek an order that the costs of the application be costs in the appeal.  I imagine you do not favour that order?

MR O’SULLIVAN:   No, your Honour, I have discussed that very issue with Mr Criddle and he informs me that he does not propose to push for an order in those terms.  So, accordingly, our position is that we neither consent to nor oppose this application subject, of course, to any observations your Honour may have regarding the costs issue.

HIS HONOUR:   Yes.  Mr McCusker, is your position different?

MR McCUSKER:   Your Honour, we do oppose the application and we would seek an order for costs in any event.

HIS HONOUR:   Yes, I do not think I need trouble you for arguments in support of the second proposition, but what prejudice – I mean, no doubt it is a regrettable default, but what prejudice has ‑ ‑ ‑

MR McCUSKER:   There was no prejudice, your Honour, other than the usual prejudice of a litigant who is kept waiting.

HIS HONOUR:   Yes, thank you.  Yes, I need not trouble you further, Mr Criddle.

Applications in two matters have been listed for hearing, namely, P57 of 2004 and P58 of 2004.  In P57 of 2004 the applicant, Mr Marsden, applies by summons dated 24 March 2005 for orders that the time for compliance with rule 41.09 be enlarged and that his application for special leave to appeal not be deemed to be abandoned under rule 41.13 of the High Court of Australia Rules.

The background is that on 30 June 2004 the Full Court of the Supreme Court of Western Australia, with Acting Justice Wallwork dissenting, dismissed an appeal by the applicant against an order by the District Court dismissing his claim for damages for personal injuries suffered at work. The District Court found that the defendant had been negligent but that no award of damages could be made because of section 175 of the Workers’ Compensation and Rehabilitation Act 1981 (WA).

On 27 July 2004 the applicant filed an application for special leave to appeal from the Full Court’s judgment.  On 25 August 2004 the applicant filed a summary of argument on the respondent on 17 September 2004.  Rule 41.09.7 provides that:

The Registrar shall furnish a copy of the index to each party to the application.

Rule 41.09.11 provides:

Within 21 days after the receipt of the index, or such other time as a Justice or the Registrar may direct, the applicant shall:

(a)      prepare and file 7 copies of the application book; and

(b)      supply 3 copies of the application book to each respondent who has filed a notice of appearance.

Rule 41.13.1 provides in part:

Where . . . an applicant fails to comply with . . . [rule] 41.09.11 within 6 months after filing the application, the application shall be deemed to be abandoned unless the Court or a Justice or Registrar has otherwise ordered or directed.

The applicant failed to prepare, file and supply the appropriate application books within six months of the date of filing his application, which was 27 July 2004.

The solicitor for the applicant by affidavit filed on 8 April 2005 has offered the following explanation for the delay.  After receiving the respondent’s summary of argument on 17 September 2004 he thought “there was a great possibility of settling the entire matter”; that discussions and correspondence to this end ensued; and that it was not until early March 2005 that the solicitor for the respondent informed the applicant’s solicitor that no offer of settlement would be forthcoming.  The solicitor for the respondent then sent a letter to the solicitor for the applicant dated 14 March 2005 saying, “Does your client intend to pursue the High Court application any further?”

The affidavit of the solicitor for the applicant then says, speaking of the settlement negotiations: 

13. During these negotiations and discussions with Counsel I did not pay attention to the High Court Rules 2004 in particular Rule 41.13 and remained unaware of those provisions that the Application Books ought to be filed within 6 months of the filing of the Application.

14.      This error is an oversight on my own part.  Were it not for the settlement negotiations which commenced, I would certainly, on behalf of the Applicant have adopted the next step. 

15.      The applicant has been greatly aggrieved by the decisions in this matter.  The Applicant is insistent on proceeding with the Application for special leave to [this] Honourable Court. 

16.      I have arranged in the circumstances for the Application Book to be ready for filing presently in the event that this Honourable Court grants an order extending the time for the filing of the Application Book. 

In P58/2004 the applicant, Mr Price, applies by summons filed on 8 April 2005 for orders that a Certificate of Deemed Abandonment issued on 11 March 2005 be set aside, that the application not be deemed to be abandoned under rule 41.13 High Court of Australia Rules, and that the time for compliance with Rule 41.09 be enlarged.

The background is that on 15 November 2002 the District Court of Western Australia dismissed the applicant’s claim for damages for personal injuries suffered at work. That court found that the defendant was in breach of duty to the applicant but dismissed his claim by reason of section 175 of the Workers’ Compensation and Rehabilitation Act 1981 (WA).

On 30 June 2004 the applicant’s appeal to the Full Court of the Supreme Court of Western Australia was dismissed, Acting Justice Wallwork dissenting.  That judgment and the judgment in Marsden’s Case were delivered together and evidently argued together.  The applicant filed an application for special leave to appeal on 28 July 2004 and a summary of argument on 25 August 2004.  The respondent responded on 17 September 2004.

On 11 March 2005 the Deputy Registrar certified that the applicant failed to comply with rule 41.09.11 on or before 28 January 2005, that is, six months after the special leave application was filed and that pursuant to rule 41.13.1 the application for special leave to appeal was deemed abandoned.

The solicitor for the applicant, who was also the solicitor for Mr Marsden, has filed an affidavit from which it may be inferred that the following explanation of the default is offered:  (a) it was contemplated that Mr Marsden’s application and Mr Price’s application for special leave would proceed in tandem; (b) the delay in relation to Mr Marsden is to be explained by the settlement negotiations; (c) although there were no settlement negotiations in relation to Mr Price (as an affidavit of a solicitor for the respondent has averred) the delay in relation to him is accounted for by the delay in relation to Mr Marsden; (d) Mr Price’s instructions have at all times been to proceed with the special leave application, and it is only the solicitor’s lack of awareness of the relevant provisions of the Rules and their predecessors which has caused the default.

Mr Criddle, who appears for both applicants today has informed the Court that the joint application book can be filed and delivered immediately and certainly by the end of the week.

The key question in each case is whether an order should be made under rule 4.02, enlarging a six‑month period within which the application books should have been filed and supplied.  Rule 4.02 provides:

Any period of time affixed by or under these Rules may be enlarged or abridged by order of the Court or a Justice whether made before or after the expiration of the time fixed.

Hodgson v Minister for Primary Industries, Water and Environment, unreported, 15 November 2001, is a decision of Justice McHugh under the Rules which preceded the current Rules.  In several ways, the facts were different and more strongly favoured the ground of relief than the present facts, but among the factors Justice McHugh identified as relevant were the explanation for the delay, the prejudice to the respondent, the length of the delay, the prospects of success in the special leave application and the readiness of the matter for hearing.

The explanation for the present state of affairs in both matters is to be found in the fault of the applicant’s solicitor, not in either of the applicants personally.

On the issue of prejudice, each respondent has been on notice of the special leave application against it since about 27 July 2004, and each has had the draft notice of appeal and summary of argument on which the applicant wishes to rely since about 25 August 2004.

In Mr Marsden’s matter, P57 of 2004, there is no evidence that the respondent has suffered any prejudice.  The respondent did not ask the Registrar to issue any certificate of deemed abandonment with its automatic cost consequences pursuant to rule 41.13.2.  The letter of 14 March 2005 from the respondent’s solicitor appeared to proceed on the assumption that the matter might well be proceeding despite the collapse of the settlement negotiations. 

In Mr Price’s matter, P58 of 2004, there is no evidence that the respondent has suffered any specific prejudice, and Mr McCusker of Queen’s Counsel, who appeared for that respondent, did not submit there was any, save for the prejudice inevitably suffered by a litigant who has been kept waiting.  In that case, the respondent did ask the Registrar to issue a certificate of deemed abandonment, but it would seem only at or about the time that the negotiations to settle Mr Marsden’s matter terminated in early March 2005.

In both matters, the delay has not been long, less than three months.  Much longer delays have not prevented appropriate extensions of time.

It is undesirable to express an opinion on the prospects which the applications for special leave may have of succeeding, but in each case, given that there is in the Full Court a dissenting judgment of a very experienced Supreme Court judge, it cannot be said that the applications are unarguable.

In both matters the relevant joint application book is ready to be filed and supplied.  There is nothing to suggest that the matter is not ready for hearing thereafter at least so soon as the Court has time available for that purpose. 

In all the circumstances, it is appropriate to grant the substantive relief sought in each summons but for each applicant to pay the corresponding respondent’s costs of the summons.  The applicants had to come to the Court seeking a favourable exercise of discretion and they have brought the respondents, who are not responsible for the applicants’ non‑compliance with the Rules, here.

Accordingly, in P57 of 2004, I make the following orders:

1.        The time within which the applicant is to comply with rule 41.09.11 is enlarged to 22 April 2005;

2.        The special leave application is deemed not to be abandoned under rule 41.13 of the Rules;

3.        The applicant is to pay the respondent’s cost of the summons;

4.        It is certified that this was an appropriate matter for the attendance of counsel in chambers.

In matter P58 of 2004 I order:

1.        The time within which the applicant is to comply with rule 41.09.11 is enlarged to 22 April 2005;

2.        The certificate of deemed abandonment dated 11 March 2005 is set aside;

3.        The special leave application is deemed not to be abandoned under rule 41.13 of the Rules;

4.        The applicant is to pay the respondent’s costs of the summons;

5.        It is certified that this was an appropriate matter for the attendance of counsel in chambers.

Is there any correction to those orders which any party wants to suggest or any addition to them?  Very well.  I should say what I ought to have said at the outset, which is that I regret the delay in starting.  I was held up by the hearing of an appeal which ran over time.  Thank you, gentlemen.

AT 5.02 PM THE MATTER WAS CONCLUDED