Master Education Services Pty Limited v Ketchell

[2008] HCATrans 118

[2008] HCATrans 118

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S384 of 2007

B e t w e e n -

MASTER EDUCATION SERVICES PTY LIMITED

Applicant

and

JEAN FLORENCE KETCHELL

Respondent

Summons

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 3 MARCH 2008, AT 9.34 AM

Copyright in the High Court of Australia

MR V.V. BEDROSSIAN:   May it please the Court, I appear for the applicant.  (instructed by Meehans Solicitor Corporation)

MR R.E. STEELE:   May it please the Court, I appear for the respondent.  (instructed by McPhee Kelshaw Solicitors)

HIS HONOUR:   Yes, Mr Bedrossian.

MR BEDROSSIAN:   Your Honour, I move on the summons filed 29 February 2008 and in support thereof I rely upon the affidavit of Paul Francis Meehan sworn and filed 29 February 2008.

HIS HONOUR:   Yes.  Any objection to that affidavit, Mr Steele?

MR STEELE:   Two objections, your Honour.  Paragraph 11 – it is a formal objection and obviously this is full of hearsay, your Honour, but I appreciate it is an interlocutory application, but in relation to that paragraph, in my submission it is bad form because it does not, in fact, clearly identify what Mr Giles actually said and, in my submission, the precise words that Mr Giles is said to have said is important.  Secondly, your Honour, paragraph 15, the words “and the apparent importance of this issue to the Franchise Council of Australia”.

HIS HONOUR:   Yes.  What do you say about those paragraphs?

MR BEDROSSIAN:   If your Honour pleases, with respect to paragraph 11, I press that portion of the affidavit.  With respect to paragraph 15, I do not press the words “and the apparent importance of this issue to the Franchise Council of Australia”.

HIS HONOUR:   Yes.  Well, I will treat the words in paragraph 15, “Given the importance” down to “of Australia” as not read and I will allow the balance of paragraph 15 and I will allow paragraph 11.

MR STEELE:   May it please the Court.

HIS HONOUR:   Yes, Mr Bedrossian.

MR BEDROSSIAN:   Your Honour, there are two applications:  firstly, an application for an abridgement of time for service of the summons.  My understanding is it is not in dispute that the summons and supporting affidavit were served by 4.00 pm on Friday.  The circumstances, in my respectful submission, warranting the abridgement of time are set out in the affidavit of Mr Meehan.

HIS HONOUR:   Yes.  Any opposition to that, Mr Steele?

MR STEELE:   No opposition to that, your Honour.

HIS HONOUR:   All right.  Yes.

MR BEDROSSIAN:   The substantive application, your Honour, is the application for an extension of time regarding order 2 made on 8 February.

HIS HONOUR:   Yes.

MR BEDROSSIAN:   I provided to the Registry, albeit at the last moment this morning, an outline of applicant’s submissions.

HIS HONOUR:   Yes, I have seen that.

MR BEDROSSIAN:   If your Honour pleases.

HIS HONOUR:   The question is whether Mr Steele has seen it.

MR STEELE:   I have, your Honour.

HIS HONOUR:   Yes, thank you.

MR BEDROSSIAN:   I forwarded it at more or less the same time this morning.  Your Honour, the applicant’s position is set out in that outline and in the affidavit of Mr Meehan.  In effect, the period of three weeks or just over that was allowed for the compliance with the condition, as circumstances have turned out, was something that was insufficient, but in that regard I do not wish to be seen as criticising the period of time allowed in the first instance.

HIS HONOUR:   No, I have read the affidavit.

MR BEDROSSIAN:   Yes.

HIS HONOUR:   Now, the original order that we made on granting the special leave was the provision of an undertaking in a form satisfactory to the District Registrar.  What is the undertaking going to be?

MR BEDROSSIAN:   It will be an undertaking ‑ ‑ ‑

HIS HONOUR:   By whom?

MR BEDROSSIAN:   By the client via the solicitor that there will be no application to vary the costs orders below and that the costs in any event of

the appeal, which will include of course the costs of the application for special leave, will be paid by the respondent in any event.

HIS HONOUR:   What assurance is there that the money will flow if and when needed?

MR BEDROSSIAN:   That is one of the reasons why further discussions with the Franchise Council is required so that there can be some assurance provided.  If some additional condition need be imposed upon, for example, this extension of time I would seek to address your Honour about that, but that is not something that is addressed at this stage because it is not known precisely the terms of any arrangement with the Franchise Council.

HIS HONOUR:   Yes.  A form, I suppose, would be an indemnity by the Council to your client upon which, if need be, Mr Steele can then call.

MR BEDROSSIAN:   Perhaps even higher than that would be a fund in trust, but yes an indemnity.

HIS HONOUR:   That would be the most preferable situation, yes.

MR BEDROSSIAN:   I make no bones about it.  My client is seeking to obtain the highest possible and the best possible arrangement with the Franchise Council.

HIS HONOUR:   All right.  Now, what do you want to say in opposition to the application, Mr Steele?

MR STEELE:   Your Honour, the application is opposed on the basis that your Honour set a time limit and the applicant has been unable to meet that time limit.  In my submission, the evidence advanced by the applicant does not give a satisfactory explanation for the failure to provide that indemnity.

HIS HONOUR:   There was an absence in the United States, was there not, at one stage?

MR STEELE:   Your Honour, in my submission, though there was reference by your Honour to the Franchise Council during the hearing of the special leave application, there was no suggestion by your Honour and no suggestion by the applicant that the Franchise Council was obliged to or was going to provide any indemnity.  In my submission, there is insufficient evidence of the applicant’s means to provide this indemnity.  There is only a broad assertion based on information and belief that the applicant is unable to, of its own means, provide that indemnity, but there is no evidence of the applicant’s financial position to establish that.  In my submission, the assumption that the Franchise Council is the route by which this indemnity is to be provided should ‑ ‑ ‑

HIS HONOUR:   There was a reference when the lead application was being heard to the necessity which would be well understood by the applicant’s solicitor to get an adequate backing for any undertaking that was given.  Clearly enough, the Court has reached the view that there is at least a question of general importance in this question of statutory construction.

MR STEELE:   I appreciate that, your Honour, but there is no evidence of any alternative attempts by the applicant to provide the necessary indemnity.  The Franchise Council obviously cannot be the only possibility and there is nothing in the evidence that says anything about any other attempt.  In any event, there is no certainty that the Franchise Council is going to be able to come to an arrangement with the applicant which will see the satisfactory indemnity or undertaking being provided.  We have an apparently categorical statement by Mr Giles but, in fact, nothing has been agreed and it is all to play for and there is simply no certainty that satisfactory arrangements are going to be reached between the applicant and the Franchise Council.

Furthermore, there is no evidence that there was any attempt to speak with anybody else from the Franchise Council.  There is reference in the affidavit of Mr Meehan to other directors, but there is no evidence that any attempt was made to speak to such directors or to advance this matter with the Franchise Council.  In my submission, the suggestion that the applicant has done everything that it can to advance this matter would not be accepted.

Your Honour, as I indicated I acknowledge that the Court has determined that the matter is one in which it is appropriate to grant leave, although the Court did see fit to set a time limit and, in my submission, injustice is worked if that time limit is extended in the circumstances or in the vague circumstances that are advanced by the applicant.  The respondent needs some certainty and there needs to be some resolution of this issue and, in my submission, that resolution should be now.  Those are my submissions.

Your Honour, one further submission – if your Honour is minded to grant the extension, then in my submission these proceedings cannot continue with endless applications for further time and, in my submission, if there is going to be a further extension that should be it.

HIS HONOUR:   I am sure you are right, but experience suggests that guillotine orders can chop off the wrong head sometimes.  I would expect that if there is an extension it would be complied with.

MR STEELE:   May it please the Court.

HIS HONOUR:   What do you want to say about costs of this summons?

MR STEELE:   Your Honour, bearing in mind the undertaking or the terms of the undertaking that are required by the Court, in my submission, the respondent’s costs of this application would be covered by that.  If that ‑ ‑ ‑

HIS HONOUR:   Costs of the summons would be costs of the special leave application, I think, really.

MR STEELE:   Yes.

HIS HONOUR:   If the special leave application comes to an end, well the costs would be wrapped up in that.  If it goes to an appeal, the special leave costs go into the appeal costs.

MR STEELE:   Yes, your Honour.

HIS HONOUR:   Yes, very well.  I do not need to hear you, Mr Bedrossian.

I think I should make the orders sought in the summons.

1.I make orders 1 and 2 in the summons filed 29 February.

2.Costs of that summons will be costs on the special leave application.

I will now adjourn.

AT 9.48 AM THE MATTER WAS CONCLUDED