Pselletes v Randwick City Council

[2010] HCATrans 208

[2010] HCATrans 208

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S266 of 2009

B e t w e e n -

GARY PSELLETES

Applicant

and

RANDWICK CITY COUNCIL

Respondent

Summons for reinstatement

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 10 AUGUST 2010, AT 2.24 PM

Copyright in the High Court of Australia

MR M.P. NEWMAN:   May it please your Honour, I appear for the applicant.  (instructed by Newman & Associates)

MR P.R. WHITFORD, SC:   May it please the Court, I appear with my learned friend, MR M.S. HENRY, for the respondent.  (instructed by Shaw Reynolds Bowen & Gerathy)

HIS HONOUR:   Yes, Mr Newman.

MR NEWMAN:   Your Honour has my affidavit explaining the lateness.

HIS HONOUR:   Yes, there seems to be a serious illness.

MR NEWMAN:   Yes, your Honour.

HIS HONOUR:   What you seek is an order having the effect of removing the deemed abandonment.

MR NEWMAN:   Yes, your Honour.

HIS HONOUR:   What do you say about this, Mr Whitford?

MR WHITFORD:   The application is opposed, your Honour, on the principal ground that the prospects of succeeding on the special leave application are futile.  We filed some short written submissions addressing the question.  We understand your Honour will have probably little appetite for delving into the merits of the matter.

HIS HONOUR:   I have looked at them, yes.

MR WHITFORD:   We state in fairly short terms, I think, on two pages of the submissions the core issue in the Court of Appeal which really is not grappled with by the special leave application in any respect and for that, among a variety of other reasons we identify in our submissions, we would say the prospects of the application succeeding are futile in which event your Honour would not grant the reinstatement of the application. 

HIS HONOUR:   What do you say about the alleged futility, Mr Newman?

MR NEWMAN:   Your Honour, we say there is a major issue which the Court could usefully determine, that is conflict between what is put up to be a determination as against the notice of the determination which, in our view, should mirror the determination which is said to be a different exercise.  I mean, your Honour, these notices are relied by the ordinary citizen.  Imagine this situation on the solicitor inserting the written consent in a contract.  If he had to consider whether that were a true consent where there were extrinsic matters to be looked at, we say it is a most important issue which has really never been determined by the Court.

HIS HONOUR:   What I propose to do is to put the applicant on clear terms as to what now has to be done, and this is the last chance for it to be done.  I will suggest the following and then see what you and Mr Whitford say about it.  Step one:  draft notice of appeal and applicant’s summary of argument be filed and served on or before 3 September; the respondent’s summary filed and served on 24 September; applicant’s reply filed and served on 1 October; the application books be prepared and filed in accordance with rule 41.09 of the High Court Rules on or before 22 October; the application be restored notwithstanding the deemed abandonment under rule 41.13; that costs of today be costs of the special leave application.

You may be right in the end, Mr Whitford, but your client is a public authority really.

MR WHITFORD:   Yes, your Honour.

HIS HONOUR:   I do not want to, sitting as a single Judge, shut out what might be blindingly apparent to persons other than myself if they were sitting.  Now, do any of you have any comment on that proposed order of events?

MR WHITFORD:   No, your Honour.

HIS HONOUR:   I will indicate it again, then. 

1.The application be restored, notwithstanding the deemed abandonment.

2.The draft notice of appeal and the applicant’s summary of argument be filed on or before 3 September.

3.The respondent’s summary be filed on or before 24 September.

4.The reply be filed and served on or before 1 October.

5.Application books be prepared and filed in accordance with rule 41.09 of the High Court Rules on or before 22 October.

6.Costs of today’s application be costs of the special leave application. 

Thank you, gentlemen.

AT 2.31 PM THE MATTER WAS CONCLUDED