Simos v Yates

[2006] HCATrans 59

[2006] HCATrans 059

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S121 of 1998

B e t w e e n -

THEODORE SIMOS

Applicant

and

IAN FRANCIS YATES

Respondent

Office of the Registry
  Sydney  No S29 of 1999

B e t w e e n -

THEODORE SIMOS

Appellant

and

IAN FRANCIS YATES

Respondent

Summonses for direction

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 14 FEBRUARY 2006, AT 9.33 AM

Copyright in the High Court of Australia

__________________

MR D.R. PRITCHARD:   If the Court pleases, I appear for the applicant.  (instructed by Corrs Chambers Westgarth)

MR M. GREEN:   If the Court pleases, I appear for Mr Yates.  (instructed by Brucer & Stewart)

HIS HONOUR:   What is all this about?

MR PRITCHARD:   Your Honour, this is an attempt by my client to clarify some costs orders which were made some time ago in the history of the matter.  It is for the purpose of proceeding again with some bankruptcy proceedings against Mr Yates.

HIS HONOUR:   Do you need leave of some sort to proceed?

MR PRITCHARD:   Initially, your Honour, I need leave to file an application.

HIS HONOUR:   Why do you need that leave?

MR PRITCHARD:   The Rules which commenced on 1 January 2005, what I call the 2004 Rules, provide that if a step is not taken ‑ ‑ ‑

HIS HONOUR:   Which rule?

MR PRITCHARD:   Part 4.03.2.

HIS HONOUR:   Yes.  I should indicate that in common with all the other Justices based in Sydney I know Mr Simos.  It is an awkward but inevitable consequence, I guess, that one or other of us has to deal with these various steps.  There we are.  What is your attitude to this application, Mr Green?

MR GREEN:   This matter has come on fairly quickly, your Honour.  In relation to this application, the respondent neither consents nor opposes the application for leave.

HIS HONOUR:   But you may have another attitude at the next stage.

MR GREEN:   I am instructed that there will be another attitude in relation to the next stage.  However, there is a need to prepare some evidence to answer some of the evidence brought forward by the appellant.

HIS HONOUR:   Yes, thank you.

MR GREEN:   If I may seek leave to file in Court an affidavit which just explains the reason why I am not in a position to proceed today and also give some countervailing history in relation to that.

HIS HONOUR:   Do you have a copy of this, Mr Pritchard?

MR PRITCHARD:   It was provided a few minutes ago, yes, your Honour, thank you.

MR GREEN:   Yes, it was sworn this morning, your Honour.  It is an affidavit of Nicholas Robison sworn 14 February.

HIS HONOUR:   Yes, thank you.  I will just read it to myself.  Sworn?

MR GREEN:   Sworn today, your Honour, sworn 14 February.

HIS HONOUR:   Yes.  I take it from annexure H to this affidavit, Mr Pritchard, that the substantial party who instructs your solicitors is the insurer, is that right?

MR PRITCHARD:   Yes, your Honour.

HIS HONOUR:   And the proceedings based on the previous bankruptcy notice were dismissed, were they?

MR PRITCHARD:   Yes, by consent, your Honour, having regard to the issues raised ‑ ‑ ‑

HIS HONOUR:   On the basis, it seems, that the bankruptcy notice was deficient.  The object of the present procedures here is to do what?

MR PRITCHARD:   Is to clarify the orders of the court.

HIS HONOUR:   How are they obscure?

MR PRITCHARD:   Can I hand up some outline of submissions we have served on my friend, your Honour, just to very quickly identify the issue.

HIS HONOUR:   The fact that they were dismissed by consent does not matter; they were dismissed, were they not?

MR PRITCHARD:   But having regard to the issues that were raised.

HIS HONOUR:   Yes.  What is the slip of which you seek ‑ ‑ ‑

MR PRITCHARD:   The slip arises by the words used by Justice Gaudron on the special leave occasion and the orders actually made when the substantive hearing of the appeal was determined and the costs orders made on that occasion.  What Justice Gaudron appeared to have said at the occasion of the special leaving hearing in response to an application by Mr Allsop of counsel who was appearing for Mr Simos at the time, at the application for costs – the words are set out in the submissions which were costs “will await the outcome of the appeal”.

HIS HONOUR:   Yes.  Well, that is what ordinarily happens.

MR PRITCHARD:   That is what ordinarily happens, your Honour, but what that would appear to be is a statement reserving the costs.

HIS HONOUR:   Go on.

MR PRITCHARD:   What happened at the final appeal the Court ordered “Appeal to this Court be allowed with costs”.  The order was not “Appeal be allowed with costs, including the costs of the application for special leave”.

HIS HONOUR:   Really, Mr Pritchard.

MR PRITCHARD:   Your Honour, these are points that have been taken in bankruptcy proceedings.

HIS HONOUR:   All right.  I will not say any more.  I am just at the threshold at the moment.

MR PRITCHARD:   Your Honour, we do not want to be here having to do this but we are because of things that have occurred.

HIS HONOUR:   Yes, all right.

MR PRITCHARD:   Your Honour, just so you know there is not a total lack of credence in the concern and therefore the need to bring it before the Court, at the time the Rules of the Court provided that when an order was made on any application that costs be reserved that they not be allowed unless there was an express order thereafter of the Court.  So, if what her Honour said constituted a reserving of costs, then strictly, perhaps, on one view of the Rules, which Rule is continued, because there was no allowance for the costs of the special leave application then there is an issue about those costs being added to and assessed as part of a certificate of taxation that was ultimately achieved for both sets of proceedings.

HIS HONOUR:   They were included, were they not?

MR PRITCHARD:   They were, your Honour.

HIS HONOUR:   That is the ordinary practice of the Court for the 40 years I have been involved in High Court matters.

MR PRITCHARD:   I appreciate that, your Honour, and it is in the written submissions.  It is unfortunate we have to trouble a Judge of the Court.  We would not be doing it unless there was a reason for it, having regard to the points being taken.

HIS HONOUR:   What is the explanation of the delay, though?

MR PRITCHARD:   Your Honour, that is explained – just so your Honour appreciates the circumstances, the three year rule before taking a step was amended from six years on 1 January 2005, so that is why we immediately felt foul ‑ ‑ ‑

HIS HONOUR:   Well, why did you wait three years, as distinct from six or from five years 11 months?

MR PRITCHARD:   I appreciate that, your Honour.  There is an affidavit sworn by a Mr Wilks, my instructing solicitor, which sets out in some detail the circumstances.

HIS HONOUR:   What is the date of the affidavit?

MR PRITCHARD:   Mark Anthony Wilks, sworn 9 February 2006 and filed on 9 February 2006.

HIS HONOUR:   What does that tell us?

MR PRITCHARD:   The petition was dismissed by consent on 22 January 2003.  Thereafter there was a awaiting of the outcome of other bankruptcy proceedings brought by the insurer of another party, LawCover, against Mr Yates.  They were resolved by agreement between the creditor and the debtor on those occasions.  That was the position up until mid 2004, 18 months.  Thereafter, your Honour, the client gave instructions at the end of June 2004 to review the position.  Advice was sought and obtained, orders were entered, further advice was obtained.

We liaised with the Registry about the problems with this order and could we get around it by an administrative process, by fixing the certificate of taxation, for example, or some other method, and the application for leave to amend was filed on 25 October 2005 – obviously, your Honour, there is more detail in the body of the affidavit than I have gone through at this stage – and then there was a delay while the files were retrieved from the Registry and obviously having regard to the passage of time.  The matter was listed today, which I understand was the first available date.

HIS HONOUR:   There is a summons in each matter, is there?

MR PRITCHARD:   There is, your Honour.

HIS HONOUR:   What is the date of the summons in S121?

MR PRITCHARD:   That is filed on 2 December 2005.

HIS HONOUR:   Yes, and the other one?

MR PRITCHARD:   It is 2 December 2005 in S29.

HIS HONOUR:   The same date?

MR PRITCHARD:   Yes, your Honour.

HIS HONOUR:   One file relates to the appeal and one to the special leave, does it not?

MR PRITCHARD:   Yes, your Honour.  S121 relates to the special leave and S29 relates to the substantive appeal.

HIS HONOUR:   What is the actual leave that you seek in terms of 4.03.2 of the Rules?

MR PRITCHARD:   Can I hand up some short minutes of order, your Honour, in both proceedings?

HIS HONOUR:   Yes.

MR PRITCHARD:   Those short minutes of order include order 1 ‑ ‑ ‑

HIS HONOUR:   Have you seen these, Mr Green?

MR GREEN:   No.  It is really order 1, as I understand it, my friend is moving on at the moment.

MR PRITCHARD:   Your Honour, order 1 is the leave application.  Orders 2 and 3 are the substantive issues.

HIS HONOUR:   Yes, this is right.  I would only be making order 1.

MR PRITCHARD:   If that is your Honour’s decision, I will not say anything further.

HIS HONOUR:   I would stand over the summons for some suitable time to enable Mr Green to give some more attention to the matter.  You have had years.  Yes, all right.

MR PRITCHARD:   The only matter in that circumstance, though, that I need to draw to your Honour’s attention is that under the current Rules we have six years, on one view of it – again, there is a slight ambiguity – six years to enforce the order from the date perhaps of the original determination, and that six years runs out in April, unless the Court further extends the period, and that is obviously a factor in play in relation to ‑ ‑ ‑

HIS HONOUR:   Yes.  It will come back in a couple of weeks.

MR PRITCHARD:   I am grateful to your Honour.

HIS HONOUR:   Do you have your diaries, gentlemen?

MR PRITCHARD:   Yes, your Honour.

HIS HONOUR:   One day late next week, would that be convenient?

MR GREEN:   Yes, your Honour. 

MR PRITCHARD:   Thursday is convenient, your Honour, if that is a possibility.

MR GREEN:   Thursday, 23 February, if that is convenient.

HIS HONOUR:   I will not be Duty Judge next week, so that will be subject to confirmation by the Duty Judge’s Chambers.  Now it is here, it should be got in train as soon as can reasonably be done.

So, in respect of the two summonses filed on 2 December 2005, I make orders in terms of paragraph 1 of the short minutes dated 14 February, namely, the applicant have leave to file a summons in accordance with pages 1 to 2 of the exhibit MMC1 to the affidavit of Michelle Margaret Carr sworn 1 December 2005.  That is in S121.  In S29, the applicant have leave to file a summons in accordance with pages 3 to 4 to exhibit MMC1 of the affidavit of Michelle Margaret Carr sworn 1 December 2005.  I do not make any further orders as set out in those short minutes, but I stand over the summonses to 9.30 am on Thursday, 23 February 2006 or such other date in that week as may be notified by the Registrar to counsel.  Costs of today will be costs of the summonses.

Is there anything else?

MR PRITCHARD:   No, your Honour.

HIS HONOUR:   Very well.  I will now adjourn.

AT 9.52 AM THE MATTERS WERE ADJOURNED
UNTIL THURSDAY, 23 FEBRUARY 2006