Savage & Ors v Lunn & Ors

[1998] HCATrans 362

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S35 of 1998

B e t w e e n -

LESLIE HERBERT SAVAGE and OTHERS

Applicants

and

EDWARD LUNN AND OTHERS

Respondents

For directions

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 12 OCTOBER 1998, AT 9.30 AM

Copyright in the High Court of Australia

MR A.A. HENSKENS:   In this matter I appear for the applicants.  (instructed by Baker Love)

MR S.T. WHITE:   I appear for the respondents, if your Honour pleases.  (instructed by The Hafey Law Practice)

HIS HONOUR:   Yes, Mr Henskens.

MR HENSKENS:   Your Honour, I move upon the summons filed on 7 October 1998.

HIS HONOUR:   Yes, and there is an affidavit in support by Mr Carmichael of the same day.

MR HENSKENS:   Yes, there is.  Your Honour, there is also a further affidavit by Mr Carmichael which was filed this morning.  I think a copy was delivered to the Registry.

HIS HONOUR:   Yes, I have that.  It was sworn on the 9th.

MR HENSKENS:   Yes, your Honour.  Your Honour, I foreshadow two corrections that I seek to make by way of amendment to the summons.  The first is a typographical error in paragraph 4.  The reference to “order 2 above” should be a reference to “order 3 above”.  Your Honour, the second amendment is in relation to order No 2.  Under the Rules, your Honour, after summaries of argument are filed pursuant to rule 6(1) then summaries of argument in reply are to be filed, and then application books are to be filed and served under rule 10(9).  If that does not occur within six months there is also a deemed abandonment.  So, I would seek leave to add the words to order 2, the words “and rule 10(9).

HIS HONOUR:   Yes.  Now, is the application opposed?

MR WHITE:   No, your Honour.

HIS HONOUR:   It seems simple enough, does it not?  What is the present situation in the Court of Appeal, gentlemen?

MR HENSKENS:   The position is that on Thursday the notice of motion to reopen the Court of Appeal’s judgment will be argued before the Court of Appeal.  Written submissions have been filed and served by both parties.

HIS HONOUR:   Is that the substantive hearing of that motion?

MR HENSKENS:   Yes, your Honour.

HIS HONOUR:   How long is that supposed, at the moment, to take. do you know?

MR HENSKENS:   Your Honour, by agreement between the parties, it is going to be brief and will be fully determined on Thursday by the way of 40 minutes; 20 minutes.  Twenty minutes, I think, your Honour.

MR WHITE:   I should clarify, your Honour; when your Honour posed the question, “Is the application opposed?”, that was the application to amend I took your Honour to be referring to.

HIS HONOUR:   Right.

MR WHITE:   This application, the substantive application is opposed.

HIS HONOUR:   On what ground?

MR WHITE:   Your Honour, firstly, delay, which has not been satisfactorily explained in - - -

HIS HONOUR:   That can be compensated in costs if it comes to the end of it.

MR WHITE:   It could be, your Honour, but - - -

HIS HONOUR:   You have got to be practical about this.

MR WHITE:   I understand that, your Honour, but this matter was heard back in 1994.  We have been waiting a determination of this litigation for many years and we see no reason why there should be any further delay in the appellant putting on its summary of argument which it has been asked to do since May of this year.

HIS HONOUR:   Well, one reason may be that you would then have to put on your argument in response and the whole thing might be beside the point because the Court of Appeal may give some reasons which throws some added light which requires rewriting of the special leave application or perhaps its discontinuance and that just engenders costs.

MR WHITE:   Yes.  Well, that, again, is a cost issue, your Honour, which if they are laid at the feet of us in due course, we will then say - - -

HIS HONOUR:   No, no, it would not be a cost issue.  Anyhow, what else?

MR WHITE:   The other matter, your Honour, is there is nothing before you to show you whether the Court of Appeal will accede to the application that is made to it.

HIS HONOUR:   Of course not, no.

MR WHITE:   Secondly, there is no evidence of any kind, nor any submission as I understand it yet made to you that special leave will be granted in a case of this kind.

HIS HONOUR:   Of course there are not.  The idea is to preserve the subject matter of the leave application.

MR WHITE:   Yes.  We say the subject matter will inure in any event whatever the outcome on 15 October.

HIS HONOUR:   And to minimise costs in that area to that end.

MR WHITE:   True, it does come down to costs on that point, your Honour, but this matter, again, has had a very lengthy history and to delay for a further significant period of time in circumstances where my friend has had six months to put on his material - - -

HIS HONOUR:   Yes, but he has been waiting to get on in the Court of Appeal.  That is not his fault.

MR WHITE:   That is true.  I certainly do not criticise - - -

HIS HONOUR:   It may not be their fault either but it is not his fault.

MR WHITE:   Yes.  Those are, essentially, the reasons why, your Honour, we say that in these circumstances no further time should be permitted.

HIS HONOUR:   Yes, all right.  Yes, Mr White.  Yes, Mr Henskens.  You had just better take me to the Rules.  It is Order 69A?

MR HENSKENS:   Yes, your Honour.

HIS HONOUR:   And what you need is a direction, do you not?

MR HENSKENS:   Yes, your Honour, under Order 69A rule 13(1).  There are four rules where a failure to comply will bring the deemed abandonment ‑ ‑ ‑

HIS HONOUR:   Yes, I see that.  Now, what was the other rule you wanted to rely on as well?

MR HENSKENS:   Rule 10(9) which deals with the preparation - - -

HIS HONOUR:   That is to do with indices and so on.  That is down the track, is it not?

MR HENSKENS:   It is, your Honour, but technically there would still be a – we need an extension of time in that regard because under rule 13(1), those matters are to be complied with within six months of the filing of the application.

HIS HONOUR:   Yes, I see.  Yes.

MR HENSKENS:   In my submission, it would follow the – if your Honour was disposed - - -

HIS HONOUR:   So, you would want to amend paragraph 3 in your summons to say – how would it then read?

MR HENSKENS:   Paragraph 2, your Honour.  Amend paragraph 2 to add the words “and rule 10(9)”.  That would be, in effect, an open-ended extension of time for the filing of the application books.  Then order 4 will deal with the deemed abandonment which, in effect, gets time ticking again.  I just was not sure if there was any other way to do it, your Honour.

HIS HONOUR:   Yes.  No, I understand what you say.  All right, well, I think I should make those orders, notwithstanding what Mr White said.  I think they are the most useful and cost effective way of dealing with this matter.  The costs of this summons, dated 7 October, would be costs in the leave application, would they not, gentlemen?

MR HENSKENS:   If the Court pleases.

HIS HONOUR:   So, on the summons dated 7 October 1998 – would you need order 1?

MR HENSKENS:   No, your Honour.

HIS HONOUR:   I do not think you need order 1.  I make the following orders:

(1)  I order that there be an extension of time for the compliance by the applicants with Order 69A rule (6)(1) and Order 69A rule 10(9);

(2)  I direct that the applicants file their summary of argument in compliance with Order 69A rule 6(1) within 21 days of the judgment of the New South Wales Court of Appeal on the applicants’ notice of motion before that Court filed 20 May 1998 and presently set down for hearing on 15 October 1998;

(3)  I direct that the application for special leave be deemed not abandoned;

(4)  I grant liberty to apply on seven days written notice; and

(5)  I direct that the costs of the summons be costs of the special leave application.

(6)  I certify for counsel for today’s appearance.

MR HENSKENS:   If it please the Court.

HIS HONOUR:   So, if you want to start the meter running again, Mr White, you come up under the liberty to apply.

MR WHITE:   If the Court pleases.

HIS HONOUR:   Thank you, gentlemen.  I will now adjourn.

AT 9.43 AM THE MATTER WAS CONCLUDED