Orr v Ford

[1988] HCATrans 134

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane Bl9 of 1988

B e t w e e n -

JOHN STUART ORR

Applicant

and

BRIAN HUBIRD FORD and PHILIP

STRUGNELL as Executors of the

Will of the late FRANCIS WILLIAM

STONE

Respondents

Application for extension

of time

TOOHEY J

Orr(2)

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 28 JUNE 1988, AT 9.32 AM

Copyright in the High Court of Australia

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MR D. RYAN: 

May it please Your Honour, I appear on behalf

of the applicants who are the respondents to the
appeal. (instructed by T.W. Biggs & Biggs)

MR R. BAIN: 

May it please Your Honour, I appear for the

respondent appellant. (instructed. by Ann.an & Peterson)

HIS HONOUR:	Yes, Mr Ryan.
MR RYAN:	Your Honour, the application is brought pursuant to the provisions of Order 60, rule 6(1) which provides, in essence, that:

A Court of Justice may enlarge or abridge

the time appointed by these Rules ..... for

doing an act upon such terms, if any, as

the justice of the case requires.

The application is rendered necessary for two reasons. contention to be filed and served within the same

time as a notice of cross.appeal might have been put

in; that is, within 14 days after service on the respondents of the notice of appeal. It is also
rendered necessary because an application was made

by the respondents to the appellant to enlarge the

time for doing that by consent. Provision is made

for that in Order 60, rule 7 and that approach was

declined.

Could I take Your Honour to the affidavit of

Trevor John Gibson. I am sorry, I do read the

sunm1ons and the affidavit of Mr Gibson, both of

which were filed on 23 June 1988.

HIS HONOUR:  Mr Ryan, you can take it that I have read all

the papers.

MR RYAN:  Thank you, Your Honour. Your Honour will have noted

then that special leave was granted on 13 May 1988.

On my reckoning, the appellant then had 21 days

within which to lodge the notice of appeal. That

would not have expired until 3 June 1988. By reason of

the fact that the notice of appeal was lodged and

was served on 19 May, the last day within which

the respondents could have filed their notice of

contention and served it was 2 June. That was a

Thursday. The fact that the notice of appeal had been filed on 19 May and that the time had passed,

that is, that 2 June had passed by, was not discovered

by the solicitor for the respondents until the

following Tuesday so there was a lapse of two or

three days in the time within which he might have

seen to it that the notice of contention was filed

and served.

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The fact is that the appellant was at all

times aware that the respondents proposed to

lodge a notice of contention. That was referred

to in the affidavit of the solicitor for the

respondents when the application for special

leave was made and, furthermore, it appears

from the letter of the Registrar which is

exhibited to the affidavit of Mr Gibson that the

appeal has been set for the Canberra sittings

on the basis that the appeal would take one day by reason of the fact that the respondents were

going to raise certain contentions. It is apparent
from the letter of the Registrar, the first two

paragraphs of that letter, that had those contentions

not been in mind, then the appeal might well have been

heard at this sittings. Therefore, I submit that the

appellant has not, at any stage, been deceived in

what the respondents proposed to do. The appellant

has not been damaged in any respect and that the justice of the case would require, with respect, that the time be extended because the delay has not

been great. The error which occurred in the office

of the respondents' solicitor's Brisbane agents has

been explained and, therefore, the reason for the delay has been explained and, as I say, the delay was very slight and everyone has or had been

proceeding on the basis that the notice of contention

would be filed within the appropriate time.

Thank you, Your Honour.

HIS HONOUR:  Yes, Mr Ryan, thank you. Mr Bain.

MR BAIN:	Your Honour, special leave was granted on a short
point of law and the respondent to the appeal has
failed, both before His Honour Mr Justice Ryan and
in the Full Court, on what are essentially factual and discretionary matters. It is, of course, not
in my - - -
HIS HONOUR:	Could I just interrupt you, Mr Bain. When you

of law, do you mean that the terms on which special	say that special leave was granted on a short point
leave to appeal were granted were, themselves, qualified?

MR BAIN:	No, they were not conditional or qualified in any
way, Your Honour.  I do not mean to submit that they
were but this is a situation which is very akin, in
my respectful submission, to a substantive cross appeal.
It is not, of course, in form because the respondent does not seek to vary the orders. The orders made
below, of course, were simply that in turn the action
be dismissed and that the appeal be dismissed. But
what will be involved by the granting of the leave sought before Your Honour is a traverse of a
significant amount of factual material and a

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consideration or reconsideration of matters of

credibility. Now, in those circumstances, where

that was not advertized to the Court at the time

special leave was granted, and where it has been

advertized subsequently, although, of course, I

accept that it was ventilated before the Full Court,

it is of some concern, in my respectful submission,
that the respondent has not timely given notice of

contention.

HIS HONOUR:  I am not sure that I follow that because the

earlier affidavit of Mr Gibson foreshadowed the

notice of contention in terms which, as far as I

can see, correspond with those of the draft notice

of contention.

MR BAIN:	And, indeed, before the Full Court, Your Honour.
That is so.

HIS HONOUR: Well, then, when you say those matters were

not ventilated at the time of the granting of

special leave, what do you mean?

MR BAIN: Well, Your Honour, it was in Mr Gibson's affidavit

certainly but it was not developed as to what would

intrude in the Court's consideration to have those

matters argued in full. That was not touched upon in

train of the special leave application being argued. It is not a situation where there was, as my learned

friend has used the term, any deception. I do not

mean for a moment to imply any such lack of frankness

in the respondent but simply what is involved in the

notices of contention or the notice of contention

that was foreshadowed. What is not - - -

HIS HONOUR:  But, once special leave had been granted, assuming

that the notice of contention had been in time, was
there any limitation to the grounds upon which the

notice of contention could have been filed?

MR BAIN:  No, there are none, Your Honour.

HIS HONOUR:  No.

MR BAIN: It is a matter of timeliness certainly but, from

the appellant's point of view, the extension of that
time now is going to reraise in the hearing of the

matter something which, at least, to first blush and

until what had happened in its ranks was made known
by the respondents - or their ranks was made known

by the respondents - seem to have been an abandonment

of that intention to persist on essentially factual

matters. Now that, of course, has been dispelled.

-rt is plain on the material that it has never been

the respondents' intention to desist in those matters
but it is, with respect, in the appellant's view for

the Court's discretion as to whether those matters

should now again be allowed to arise.

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HIS HONOUR:	Yes, thank you, Mr Bain.
MR BAIN:	I cannot assist Your Honour further.
HIS HONOUR:	Mr Ryan.
MR RYAN:	I have nothing further to say about the application
itself, Your Honour.
HIS HONOUR:	Thank you.

This is an application to extend the time in

which to file and serve a notice of contention

pursuant to Order 70, rule 6(5) of the High Court Rules. The notice of contention was foreshadowed

in the affidavit of Trevor John Gibson, sworn
7 April 1988 and filed at the time of the application
for special leave to appeal. Mr Gibson's affidavit
of 20 June 1988 evidences the fact that the failure

to file the notice within time is due to a

misunderstanding, a misundersta~ling to which the

appellant's ~olicitors ma.y have contributed, though

unconsciously. The object of Order 60, rule 6,

which permits the enlargement of time, is to avoid

injustice to the parties. To refuse an extension

would, I think, cause an injustice to the respondent. circumstances, it seems to me appropriate that there should be an order in terms of the sunnnons
To grant an extension would cause no injustice to
the appellant, particularly as the matters proposed
to be raised in the notice of contention do not
depart from those foreshadowed in the affidavit of

and there will be an order accordingly.

Mr Ryan, does your summons deal with the question

of costs?

MR RYAN:	No, it does not.
HIS HONOUR: It does not, in specific terms. What do you

suggest ought to be done?

MR RYAN:	I ask Your Honour, with respect, to depart from
the provisions of Order 60, rule 3 which provides
that the costs of this type of application "shall
be borne by the party making the application
unless the Court or a justice otherwise orders"- the concluding words of rule 6(3).
HIS HONOUR:	Yes.
MR RYAN:	The reason I ask Your Honour to do that is that the
factual matter on which the application was based
was straightforward. The fact that the application

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was foreshadowed as uncontested and the notice

of contention which it was proposed to lodge,

a copy of which was submitted to the appellant's

solicitors at the time that their consent to an

extension was sought, is in, as Your Honour said,

almost identical terms to that foreshadowed in

Mr Gibson's earlier affidavit and the circumstances

in which the error occurred were explained in detail

to the solicitors for the appellant at that time.

Your Honour, there is another rule to which I

should direct your attention in connection with this

point and that is Order 71, rule 69(3) which says:

The costs of a summons to extend time shall

not be allowed unless the party taking out the summons has previously applied to the

opposite party to consent to a sufficient

extension of time and the opposite party

has not consented -

and it goes on to say - - -

HIS HONOUR: It is a curious rule - - -

MR RYAN: It is, yes.

HIS·HONOUR:  - - - unless one reads it down to refer only to

a situation where the taxing officer is called upon

to exercise some discretion.

MR RYAN:	Yes.
HIS HONOUR:	It would seem odd if a rule or a subrule within

rule 69 which seems to look essentially to the

discretion of the taxing officer should somehow,

as it were, overrule Order 60, rule 6 which deals

expressly with the question of costs when the

extension of time is before the Court.

MR RYAN: Quite so. Yes, Your Honour, that very point was

commented on by the Full Court of the Federal Court

of Australia in L. GROLLO DARWIN MANAGEMENT PTY LTD V

VICTOR PLASTER PRODUCTS PTY LTD, (1978) 33 FLR 170,

and the court discussed those rules to which you

have just referred, Your Honour, and said, at

page 179:

It thus appears at least probable

that the rules contemplated that a judge
shall not direct payment of costs of an

application for extension unless there

has been an attempt to obtain the extension

by consent which has been rebuffed.

Alternatively such an application and rebuff

would be a very relevant matter in determining

whether to depart from the prima facie situation

in 0. 60, r. 6(3).

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I submit that, in light of the facts that surround

this application and the rebuff of the approach

which was made, that the prima facie rule ought to

be departed from and the respondents, having not

successfully resisted our application, ought to

pay the costs of it.

HIS HONOUR:  Yes, thank you, Mr Ryan. Mr Bain, what do you

say about this?

MR BAIN:	Your Honour, in my respectful submission, the
applicant for the leave Your Honour has granted
should pay the costs. It was a situation where,
although there was an intention advertized, there
was apparently and until a letter was received, some desistance in that and what is sought out of time by Your Honour's leave is an indulgence to
raise a substantial area of argument which will
involve the appellant in costs and expense in meeting it, albeit that it has been ventilated
below and that it was harbingered in the material.
In those circumstances, in my respectful submission,
the rule which prima facie entertains the applicant for the indulgence paying the cost should govern the
situation.
HIS HONOUR:	Yes. Certainly Order 60, rule 6(3) provides in

terms that the costs of an application to extend

time "shall be borne by the party making the

application unless the Court or· a justice otherwise orders". Sit down, Mr Bain, thank you.

Sorry, Mr Ryan, I should have asked whether

you wish to reply to anything Mr Bain had said on

the question of costs.

MR RYAN:	I do not, thank you, Your Honour.
HIS HONOUR:	As I was saying, the Order 60, rule 6(3) is,

in terms, that the costs of making an application

to extend time "shall be borne by the party making

the application unless the Court or a justice

otherwise orders". Clearly, then, it is contemplated

that there may be a departure from that prima facie

rule. In the present case, the respondents attempted

to obtain a consent to the application but without

success and, in the circumstances, it seems to me

that the appellant, that is the respondent to this

application should not have an order for costs in

his favour, since there was a reasonable approach

made to consent to the making of the application.

At the same time, the application was necessary,

consent having been refused,because the respondents,

the applicants to the present application, found
themselves out of time. In those circumstances,

it seems to me, that the costs should simply lie

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where they fall and that there should be no

order as to the costs of the application.

MR BAIN:	Thank you, Your Honour.
HIS HONOUR:	The Court will now adjourn.

AT 9.47 AM THE MATTER WAS ADJOURNED SINE DIE

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