Paroz v Paroz

[2011] HCATrans 138

[2011] HCATrans 138

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B2 of 2011

B e t w e e n -

LESLIE ROLAND PAROZ

Applicant

and

IAN LESLIE PAROZ

First Respondent

JENNIFER MARGARET PAROZ

Second Respondent

LEWIS MARTIN PAROZ

Third Respondent

KAREN ANN PAROZ

Fourth Respondent

Summons to strike out application

KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 19 MAY 2011, AT 10.15 AM

Copyright in the High Court of Australia

MR D.G. BOURKE:   If your Honour pleases, I appear for all four respondents.  (instructed by Ernst & Young Law)

MR M.T. HICKEY:   If your Honour pleases, I appear for the applicant.  (instructed by DownieLaw)

HER HONOUR:   Mr Bourke, I think your material comprises the summons to strike out filed on 21 April, the affidavit of J.G.C. Campbell filed that day and the affidavit of Mr Bourke filed that day together with a further affidavit for which you require leave I understand?

MR BOURKE:   That is correct, your Honour, I do.

HER HONOUR:   All right.  Do you have that there?

MR BOURKE:   Yes, your Honour.

HER HONOUR:   Is there any objection to leave being given?

MR HICKEY:   No objection, your Honour.

HER HONOUR:   Thank you.  Leave to file the further affidavit.

MR BOURKE:   Thank you, your Honour.

HER HONOUR:   Mr Hickey, you have a summons to dispense with the time for filing the application for special leave?

MR HICKEY:   That is right, your Honour.

HER HONOUR:   I do not think we need to deal with that today.  It is a matter which I will take into account, but if the matter is to go over for the hearing of the special leave application, that is a matter which would be determined in the course of the special leave application.

MR HICKEY:   Thank you, your Honour.

HER HONOUR:   So I think the affidavit of Mr Downie filed on 16 May is the substantive affidavit which you would be relying on.

MR HICKEY:   It is for today’s purposes, your Honour, yes, although there is some material contained in the first affidavit, that being the 18 January affidavit, which explains some of the background to the matters which may or may not be of relevance.

HER HONOUR:   Yes.  Well, you are quite right.  The affidavit in support of the summons, which we do not need to deal with today, explains the difficulties created by the flooding in Brisbane in terms of filing the application.

MR HICKEY:   That is right, your Honour.

HER HONOUR:   Yes.  I will take that into account.

MR HICKEY:   Thank you, your Honour.

HER HONOUR:   Mr Bourke, I understand that the particular difficulty that this application being delayed and outstanding has caused is with respect to the distributions by the receivers, is that right, which would facilitate the purchase by the first and third respondents of certain of the property?

MR BOURKE:   That is one of the issues, your Honour, yes.  Well, that is the major issue.

HER HONOUR:   That is the main difficulty?

MR BOURKE:   Yes, your Honour.

HER HONOUR:   Would you be able to maintain that as a real difficulty as distinct from an inconvenience if the matter was now expedited.  The draft notice of appeal and the summary of argument have now been filed and all that is necessary prior to a date for hearing of the special leave application I think would be the filing of an application book.

MR BOURKE:   And our submissions in response, I should imagine, as well.

HER HONOUR:   Yes.  I imagine you would put those on rather quickly.

MR BOURKE:   They would be on rather quickly, yes.

HER HONOUR:   So if those matters were attended to, do you still wish to pursue the application to strike out?

MR BOURKE:   There is not a lot more that I can say, your Honour, apart from one other ‑ ‑ ‑

HER HONOUR:   You have probably achieved most of your objectives, which is to get the matter progressed.

MR BOURKE:   To get the material, yes.

HER HONOUR:   You would be seeking costs of the application?

MR BOURKE:   Today’s costs on the application, yes, your Honour.

HER HONOUR:   All right. 

MR BOURKE:   There was one point I wished to make in relation to the case that was mentioned by my friend.  I am not sure if it is appropriate to make it now.  I agree that if ‑ ‑ ‑

HER HONOUR:   We probably do not need to go into it if, as you say, the matter needs now to be progressed.  You are not suggesting that there would be no grounds for allowing the matter to proceed to a hearing in terms of the effects upon your clients.

MR BOURKE:   I cannot.

HER HONOUR:   You are not going that far.

MR BOURKE:   I really cannot progress any prejudice to my clients.

HER HONOUR:   What you were probably going to tell me is that that case does not really deal with a situation where an application for special leave has been filed.  It concerns an appeal which has already been filed and is to be determined.

MR BOURKE:   I was going to make the point rather, your Honour, that the case actually – there were three issues or three points raised by my friend.  We would submit that there is a fourth point, which was the substantive merits of the appeal, but ‑ ‑ ‑

HER HONOUR:   That is not somewhere that ‑ ‑ ‑

MR BOURKE:   That is probably more appropriate to my friend’s application on the day.

HER HONOUR:   Which, as I have indicated, would be determined on the day as part of the special leave application.

MR BOURKE:   Yes, your Honour.

HER HONOUR:   The merits is not something that I would usually entertain on an application of this kind.

MR BOURKE:   Yes, your Honour.

HER HONOUR:   Yes.  It is not something I would entertain at this point.  Mr Bourke, what timeframe are you looking for in terms of orders?

MR BOURKE:   I think under the rules our submissions are due within 21 days from Monday, your Honour.

HER HONOUR:   Do you want to make it shorter than that?

MR BOURKE:   Is there is any chance that it might be brought on quicker if we were to have them in more quickly?

HER HONOUR:   I think the sooner you get everything organised, the better.  I have made some inquiries, but I do not know that I could actually give you a date when it can be accommodated.  Certainly the Registrar would be told that this should be expedited if at all possible within the timeframe.  Just one moment.  The matter might be able to be heard on Friday, 12 August.  There is only one other special leave day between now and then and I think there is some difficulty in having it accommodated.  Is that going to cause a difficulty for your clients?

MR BOURKE:   No, not at all, your Honour.

HER HONOUR:   That is not too far out in terms of distributions.

MR BOURKE:   No.

HER HONOUR:   Probably knowing a date is probably the – so we should aim for Friday, 12 August 2011.

MR BOURKE:   That day.

HER HONOUR:   So that would probably accommodate your 21 days in any event.

MR BOURKE:   That would and I would be reluctant to shorten it because I am not aware of what counsel’s commitments are.

HER HONOUR:   Absolutely, yes.  They will complain about the 21 days as it is.  All right then.  So 21 days.  Then your reply would take how long then, Mr Hickey?

MR HICKEY:   Under the rules we are entitled to seven days, your Honour.

HER HONOUR:   Seven days.  You should have that if you have the time.

MR HICKEY:   I am mindful of the fact that we are attempting to expedite matters, but I am not presently aware of what my commitments are at that time, but if I could ask for the full seven days, your Honour, then certainly we could comply with that.

HER HONOUR:   What about the application book, how soon can you have that attended to?

MR HICKEY:   My instructions are we could have that filed at the same time as the reply, your Honour.

HER HONOUR:   Just so we know the dates that we are talking about, I think we are talking about 9 June, Mr Bourke, for the filing of your submissions.

MR BOURKE:   Sorry, your Honour?

HER HONOUR:   Perhaps I will just express it in days.  We can work out the dates from there.

MR BOURKE:   That is fine, yes.

HER HONOUR:   Mr Hickey, I do not think that you can really deny the applicants their costs of this application?

MR HICKEY:   No, I cannot make any submissions to that extent, your Honour.

HER HONOUR:   All right then.  The orders will therefore be:

1.The respondents file and serve their summary of argument within 21 days from today.

2.The applicant file and serve his reply, if any, within seven days of receipt of the respondents’ summary of argument together with the application book.

3.The applicant for special leave pay the respondents’ costs of their summons filed on 21 April 2011.

MR HICKEY:   Thank you, your Honour.

HER HONOUR:   Nothing further?

MR BOURKE:   What do you propose to do with that summons?  Should that be dismissed, your Honour?

HER HONOUR:   The summons for an extension of time brought by the applicant?  I will adjourn that generally.I do not think it will need to be formally dealt with, but it should stand over until the application for special leave.

MR HICKEY:   Thank you, your Honour.

MR BOURKE:   Yes, your Honour.

HER HONOUR:   Thank you.

AT 10.26 AM THE MATTER WAS ADJOURNED