Sutton v Jones

[2005] HCATrans 855

[2005] HCATrans 855

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S509 of 2004

B e t w e e n -

RUTH SUTTON

Applicant

and

DARREN JONES

Respondent

Summons

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 13 OCTOBER 2005, AT 9.27 AM

Copyright in the High Court of Australia

MR B.R. McCLINTOCK, SC:   May it please the Court, I appear with my learned friend, MR A.T.S. DAWSON, for the applicant.  (instructed by McMahons National Lawyers)

MR A. LEOPOLD:   May it please the Court, I appear for the respondent.  (instructed by Allens Arthur Robinson)

HIS HONOUR:   Mr McClintock, you move first on a summons of 15 September. 

MR McCLINTOCK:   I do indeed, your Honour, and upon the affidavit of Joel Lewis Hubbard filed 16 September.  I do not think it is dated, your Honour.  Yes, it is, 16 September.

HIS HONOUR:   Paragraph 25 has two sentences in it that Mr Leopold objects to or at least his written submission said he was going to.  Do you press them?

MR McCLINTOCK:   Yes, your Honour, I do press them.  I do not wish to be heard at any length on them other than simply to say this.  The objection, of course, as I apprehend it, is the without prejudice privilege objection.  We would say that those sentences do not disclose the contents of any settlement negotiations and therefore do not transgress section 131 of the Evidence Act. 

HIS HONOUR:   I think the actual objection was probably based on form.

MR LEOPOLD:   Your Honour, I will not press the objection to either sentence, but by saying that I do not wish to be taken to be waiving, on behalf of my client, any privilege or right he may have in relation to any without prejudice communications with the applicant in these proceedings.

HIS HONOUR:   Do you have anything to say, Mr McClintock?

MR McCLINTOCK:   I do not want to say anything further, your Honour.

HIS HONOUR:   I will receive into evidence the affidavit of Mr Hubbard except for the third and fourth sentences of paragraph 25.  You do not wish to cross-examine Mr Hubbard?

MR LEOPOLD:   No, your Honour.

HIS HONOUR:   Mr Leopold, you move on Jennifer Louise Priestley’s affidavit which was filed on 12 October?

MR LEOPOLD:   Yes, I read that affidavit, your Honour.

HIS HONOUR:   And also Vera Elena Schwanenberg of 12 October?

MR LEOPOLD:   Yes, I read that affidavit, your Honour.  I tender the exhibits. 

HIS HONOUR:   Yes.  Do you object to any part of the affidavits or the exhibits?

MR McCLINTOCK:   No, I do not, your Honour. 

HIS HONOUR:   Those exhibits will bear their exhibit markings.  Mr Leopold, if the present impediment were removed, the special leave application could be heard on 18 November 2005.  We seem to be just a few books away from going there.  Why should we not go there?

MR LEOPOLD:   Three reasons and that is this.  The applicant in written submissions advances in substance three reasons or submissions as to why an extension ought to be granted.  I will just address those briefly in turn if I may.  The first is that there is evidence that demonstrates that the defaults which triggered the abandonment were not the applicant’s fault.  That was the first submission.  In my submission, in truth, there is in the evidence no explanation at all for the defaults which occurred, and there were several of them, and I will briefly come to that in a moment. 

The authorities establish that an applicant seeking an enlargement of time, as this applicant is, must prove the existence of material or circumstances which provides a proper foundation for the exercise of the Court’s discretion.  In Gallo – I do not want to take your Honour’s time by opening up Gallo but I just want to read two sentences of it.  It is cited in paragraph 5 of my written submissions.  In Gallo at page 459 in the left column, Justice McHugh said:

the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant.

And later in that column, towards the bottom of that left column, said:

before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.

That, in my submission, plainly casts an onus upon the applicant in this sort of application which the applicant must discharge, but when one goes to the affidavit of Mr Hubbard, which is, after all, the only evidence before this Court which the applicant has placed before this Court, that affidavit does not even touch upon the existence of such material or such circumstances.  I wanted to take your Honour briefly to the essential parts of that affidavit, that is paragraphs 16 to 17 ‑ ‑ ‑

HIS HONOUR:   Maybe we can shorten things a bit.  One default was to be one day late on 1 March with whatever document had to be filed the day before.  That is not a problem. 

MR LEOPOLD:   I am not taking any point about that.

HIS HONOUR:   The next default was the failure to get the application books in order in the appropriate time, in particular, by the appropriate time and then by 22 June.

MR LEOPOLD:   In fact, there was a default by 9 May:  see the exhibits at paragraph 16 of the affidavit.  The time was 9 May.

HIS HONOUR:   There was an application to extend time after the time had elapsed. 

MR LEOPOLD:   Much later it was extended to 6 June, default, and then abandonment 22 June – further default, as it were.

HIS HONOUR:   Yes.  Can I say that there does not seem to be any explanation for those defaults except for ignorance of the present rule.  That is not an explanation.

MR LEOPOLD:   That is not an explanation.

HIS HONOUR:   We could do quite a good double act together, Mr Leopold.

MR LEOPOLD:   I am sorry, your Honour.

HIS HONOUR:   That is not a good explanation because you can infer from the evidence that a letter was sent from the Registry just before Christmas pointing out the existence of the old rule, which is materially the same as the new rule, and that made it pretty plain as to what would happen if there was non-compliance. 

The final bit of delay to be explained is the interval between the filing of the summons in September and the automatic determination of the proceedings in June, which an attempt to explain is made by these without prejudice discussions.  Your answer to that would be that is no explanation because without prejudice discussions often fail and steps should be taken to remedy the position as soon as possible.

MR LEOPOLD:   It is at least an unsatisfactory explanation as to the period between June and September.  There should have been an application filed and then engage in the discussions.  But I say in relation to the antecedent defaults no explanation of any kind – avoided and, indeed, by referring to ignorance of the consequences is redolent of the possible explanation that there was a conscious default of the Court’s Rules.  In other words, “If I’d known of the consequences then, I would have done this or that”. 

We do not know, because there is no explanation – I call in aid the principles in Jones v Dunkel.  Because the applicant had the onus and has failed to adduce any evidence at all on the topic – she has not put on an affidavit on the topic and the solicitor, Mr Hubbard, has avoided the topic – in my submission, what follows from that, in accordance with Jones v Dunkel and Payne v Parker and the like, is that the Court must at least treat with reservation the inference contended for, which is that it was not her fault, and the submission in paragraphs 3 to 4 of the applicant’s written submissions that it was not her fault and it was the solicitor’s fault cannot be put and is not an inference, in my submission, that is open, with respect, to the Court to find in these proceedings.  I do say, because of paragraph 24 of the affidavit, that it takes it one step further back again because of the “If I had known, then I would have” flavour to paragraph 24.  It does then suggest, in the absence of evidence ‑ ‑ ‑

HIS HONOUR:   Which says that until the receipt of the letter of 27 June advising of the deemed abandonment, “I was unaware of Part 41, rule 41.13 of the High Court Rules”, as it is described. 

MR LEOPOLD:   It does not mention the precursor by the way but, “Had I been aware” – well, we do not know.  It may well be saying – we just do not know because there is just no evidence and the Court is an unsatisfactory position – that had the deponent been aware then, “Well, we may have stopped deliberately flouting the Court’s rules and stopped deliberately defaulting”.  After all, there is a further flavour that emerges from this, and that comes from paragraph 21, which implies that perhaps after that decision the appetite for going on diminished and that, coupled with the principles in Jones v Dunkel, it may well be that that provides a foundation for an inference that after 16 June there was just no appetite to go on with the High Court proceedings.

HIS HONOUR:   I do not think that actual decision is in the evidence and I do not ask for it to be in the evidence, but how did the decision curtail the entitlement to costs?

MR LEOPOLD:   Instead of the order which had been made, which was that the present applicant was to pay the present respondent’s costs, that was reduced back down to paying four days of the present respondent’s costs of the section 7A Defamation Act jury trial plus reasonable costs of preparation and not certifying for Mr Hughes, QC.

HIS HONOUR:   At the trial?

MR LEOPOLD:   At the trial.

HIS HONOUR:   But the costs of the appeal ‑ ‑ ‑

MR LEOPOLD:   I should have added, and now add, and each party to bear their own costs of the appeal, whereas we had prior to that day had the costs of the appeal.

HIS HONOUR:   But there is a statement in the evidence that the costs were hundreds of thousands of dollars but the actual costs in issue would be a fair bit less than that.

MR LEOPOLD:   Costs are only costs once they are assessed by an assessor.  It might be that figures have been floated about and there might have been figures mentioned in without prejudice negotiations but, of course, under the Legal Profession Act in New South Wales an obligation to pay costs only crystallises upon the issue of a certificate of assessment.  So one does not know what the figure is.  One can make assertions only.

HIS HONOUR:   I think an assertion was made in evidence that it was hundreds of thousands, but in the light of that decision it would be less.

MR LEOPOLD:   An assertion was not made in evidence, I do not think.

HIS HONOUR:   Maybe it was made in a submission.  It was made in a piece of paper I was entitled to read.

MR LEOPOLD:   An assertion might have appeared in paragraph 25 in one of the sentences not admitted, ”It had been hoped that”.

HIS HONOUR:   No, I was not thinking of that.  Let us not worry about it.

MR LEOPOLD:   A comment was made in the Court of Appeal which I rose to my feet and objected to but there was not any evidence.  There has never been evidence about that, in my submission. 

HIS HONOUR:   But it would not be a foolish statement to say of a trial in the District Court that took 13 or maybe more days, plus an application for leave to appeal to the Court of Appeal, plus a day’s hearing, plus some days after that, that the costs would be substantial, would it?

MR LEOPOLD:   That is right.

HIS HONOUR:   I think this is an immaterial point.

MR LEOPOLD:   Justice Beazley made some comments to that effect or drew some inference from her experience to that effect in her leading judgment in the Court of Appeal.  The only point I make about it is that no doubt there was a significant obligation to pay costs before 16 June and, as the affidavit says, it was significantly curtailed after 16 June, and we do not know, because there is no explanation, but for all we know the applicant personally made a decision she had lost her appetite and then somehow later regained her appetite. 

The submission I make is that by avoiding putting any evidence on it I do call in aid the principles I mentioned.  She has failed to discharge her onus on what is a critical matter according to the authorities.  The submission put in paragraphs 3 to 4 of the written submissions cannot be, in my respectful submission, sustained, that is that it was not her fault, and for all we know – we just do not know – it may have been a deliberate decision on her part.  We do not know who made the decision, what decision they made or what the nature of it was because there is no evidence about it.  In my submission, the first of the three submissions ought to be rejected, that is that it was not her fault, and it was put that it was therefore quite distinguishable from other authorities, including Gallo. 

Secondly, I wanted to address this, that the second submission put was that there was an absence of prejudice to the respondent.  I wanted to say in relation to that first that the way the authorities put it is that there was a vested right to retain judgment from the moment of the abandonment and by extending time that is lost – that vested right is lost.  That vested right is referred to in Gallo itself and in an unreported decision called Olsthoorn.  It is said by Justice McHugh that the same principles are applicable to special leave applications and his Honour said that upon the issue of the certificate of abandonment the respondent had a vested right to retain the judgment insofar as it was in her favour.

The second aspect of prejudice is that in a defamation case of the essence is the seeking of vindication of one’s reputation, that vindication only comes with finality of the litigation and that vindication that came with finality in June is now sought to be taken away again. 

The third element of prejudice is the stress and inconvenience of further litigation.  The position before today and up to this moment is that there is no further litigation in the matter.  It is closed.  It is over.  There will be stress and inconvenience imposed by further litigation.  Compare the discussion in Verwayen, the inferences the Court drew in Verwayen about the stress and inconvenience involved in litigation.  In Gallo v Dawson Justice McHugh spoke about the need to take account of the nature of the litigation, again at page 459, left column. In my submission, the very nature of defamation litigation is that the stress factor of the litigious dispute is magnified.

The fourth thing is this, that there is the cost of further litigation and, even assuming that some costs are recoverable if he succeeds, at the end of the further litigation there will be irrecoverable costs in any event as a result of the usual rule that one only recovers a party/party order upon success.  So for all those reasons, in my submission, it is not right to say that there is an absence of prejudice to the respondent.

The third of the three submissions which the applicant, in effect, puts in the written submissions is that, “Well, we have a special leave application which is not unarguable”, and I have accepted, in my written submissions, it is not unarguable, but I have submitted it has low prospects of success.  I do not want to repeat what I said about that in my written submissions.  It is all in the summary of argument.  But, in my submission, it is not the law in the decided cases that if you can come along to this Court seeking an enlargement of time after an abandonment showing, without more, that you have an arguable special leave application, that you can get an enlargement.  What the established principles do demonstrate is the need to discharge an onus to prove some injustice if there is no extension of time and, again, two sentences from Gallo where Justice McHugh said:

In order to determine whether the rules will work an injustice –

He said, first of all, at 459D in the left column:

The grant of an extension of time under this rule is not automatic.  The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice.  The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties.

He later said at about E to F in that same column:

In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.

Later, in the right-hand column in the middle, he said:

I doubt that I would have considered the applicant’s explanation for the delay to be a sufficient reason for enlarging the time for lodging her appeal from the 21 days . . . even if I had thought that the applicant had real prospects of succeeding in her proposed appeal.

So the way the Court has approached this sort of application is to say it is not enough, without more, just to come along and show you have an arguable special leave application.  In my submission, an obvious policy underlying the abandonment rule, which now is rule 41.13, is to stimulate compliance generally by applicants generally with the Court’s strict deadlines.  That policy will plainly be undermined if it is enough, without more, for an applicant to come along to this Court and say, “I’ve got an arguable special leave application without more”.  The evidence fails to show the more and your Honour is just left with an assertion of an arguable special leave application and my assertion that it has low prospects of success. 

In my submission, the law must be at least to this effect, that at minimum an applicant must, other than in the most exceptional case, prove that there has been no deliberate flouting of the Court’s Rules, no deliberate advertence to a default and a maintenance of that default.  There was no explanation in this affidavit for any of the defaults, the one by 9 May, 6 June, 22 June, and even that minimum principle of proving “not deliberately flouting” is not even done here in the evidence and, in my submission, the absence of at least that relevant evidence, but any evidence at all upon which your Honour could have some material to exercise the discretion, to pick up the language of Justice McHugh in Gallo, is fatal to the application which, in my submission, ought accordingly to be dismissed for absence of sufficient material and sufficient evidence.  May it please the Court. 

HIS HONOUR:   Yes, thank you, Mr Leopold.

MR LEOPOLD:   I should indicate that if your Honour were inclined to make the order that the form of order proposed does not seem to do the job exactly and that I would want to say something about costs.

HIS HONOUR:   I think…..about the costs, there is no problem about that, but you may want to something more about the costs. 

MR LEOPOLD:   I would want to say something more about costs.

HIS HONOUR:   I need not trouble you, Mr McClintock.

The applicant moves on a summons filed on 15 September 2005 for an order having the effect of nullifying the operation of rule 41.13.1 of the Rules pursuant to which the applicant’s application for special leave to appeal was deemed to have been abandoned on 22 June 2005.  A Deputy Registrar so advised on 27 June 2005 and so certified on 19 August 2005.

The background is that on 26 November 2004 the New South Wales Court of Appeal allowed an appeal by Mr Jones, the plaintiff at the trial, against orders made by a District Court judge finding a verdict for the defendant, Mrs Sutton, in defamation proceedings.  Mrs Sutton is the present applicant.  The Court of Appeal gave judgment for the plaintiff in the sum of $5,000 and made orders as to costs which have since been modified.  The trial lasted 13 days.

On 22 December 2004 the applicant filed an application for special leave to appeal to this Court.  On 1 March 2005 she filed a draft notice of appeal and a summary of argument.  This contravened rule 41.05.1 of the Rules which required these documents to have been filed within 28 days of filing the application.  There have been two extensions of time granted by a Deputy Registrar but the second extension was only to 28 February 2005.  On 4 April 2005 the respondent filed his summary of argument.  On 18 April 2005 an index was filed after an appointment on that day was made at the Registry attended by the solicitor for the respondent but not for the applicant.

Rule 41.09.11 required that the applicant should prepare, file and serve application books within 21 days, namely by 9 May 2005.  The Deputy Registrar sent a letter warning the applicant’s solicitors of this fact on 18 April 2005.  On 2 June 2005 – that is to say well after the relevant time had expired – the time was extended by the Deputy Registrar to 6 June 2005.  That was made necessary by an application by the solicitors for the applicant to include a further judgment of the Court of Appeal, namely the judgment granting leave to appeal on 11 September 2003.  The Deputy Registrar was advised of this and the judgment was delivered to him on 30 May 2005.  However, the books were not filed at all and, in particular, they were not filed within six months of the application having been filed on 22 December 2004.  It was for that reason that, in consequence of rule 41.13.1, the application was deemed to have been abandoned on 22 June 2005.

In substance the applicant seeks an extension of time within rule 4.02 within which to comply with rules 41.05.1 and 41.09.11 and an extension of time fixed by rule 41.13.1.  Counsel for the respondent drew attention to some statements of McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480 and 481. His Honour said:

The grant of an extension of time under [the then] rule –

which is equivalent to the present rule –

is not automatic.  The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice.  The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties.  This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant.  In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time . . . It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.

He concluded by saying:

I doubt that I would have considered the applicant’s explanation for the delay to be a sufficient reason for enlarging the time for lodging her appeal from the 21 days required by the Rules to the more than 16 months which would be required if this application were to succeed, even if I had thought that the applicant had real prospects of succeeding in her proposed appeal.

The parties are agreed, as emerges from their written submissions, that those passages state the correct tests.  Unlike that case, in which an extension of time to file a notice of appeal dismissing an action in the original jurisdiction of the High Court was sought, this case is one in which a special leave application was filed in time.  The delays took place later.  The present case is perhaps more analogous to that discussed by Brennan CJ and McHugh J in Jackamarra v Krakouer (1998) 195 CLR 516 at 520 [4]. They explained that to grant an extension of time to lodge an appeal “put at risk a vested right of the respondent” and continued:

When the application for an extension of time merely concerns the doing of an act in respect of an appeal already lodged, as the present case does, an even more liberal approach is justified.  The court is dealing with a pure procedural question – should time be extended?

That case is not precisely in point because the precise issue did not concern an appeal, but it is certainly the case here that an application for special leave to appeal has been lodged.  It does remain the case, as counsel for the respondent pointed out, that the respondent has, in a sense, a vested right to the judgment given by the Court of Appeal and that vested right will remain until at least special leave has been granted, and perhaps longer.

In those circumstances, the merits of the special leave application, while not totally irrelevant, are less material.  The respondent concedes that the application for special leave does not have no prospects of success, although he does submit that the prospects are low.  It is undesirable to say anything on this subject beyond noting that the trial judge has had considerable experience of defamation work and, at least to that extent, her judgement ought to be accorded respect.

The principal arguments advanced by counsel for the respondent against the summons were these.  The first group of arguments were directed to contentions to the effect that the quite numerous defaults were not the fault of the applicant personally.  It was submitted that there is no explanation for any of them.  It was submitted that the Court should treat with reservation the submission on behalf of the applicant that the defaults were not her fault and it was submitted that there was at least a strong suspicion that the applicant personally may have knowingly disobeyed the Rules of the Court.

A second group of arguments turned upon points of prejudice.  One concerned the loss of the vested right to a judgment; another concerned the fact that the goal of defamation proceedings is for the plaintiff to vindicate reputation.  The plaintiff obtained vindication from the decision of the Court of Appeal and that vindication is now to be taken away again, or at least that is what the applicant is attempting.  A third point of prejudice was the stress of further litigation if the effect of the deemed abandonment were removed and a fourth point was that, even if the respondent succeeded in having the special leave application dismissed or succeeded in an appeal, there would be an excess of costs to be paid by the respondent over and above the costs ordered in favour of the respondent and recovered by the respondent.

The third group of arguments advanced turned on the proposition that it was not enough to overturn the effect of the relevant rule to show that there was an arguable case.  It was submitted that there was a clear policy in the rule to stimulate compliance by applicants generally with the Court’s Rules in relation to special leave applications and it was submitted that at a minimum the applicant had to prove that there had been no deliberate flouting of the Court’s Rules and that that had not been done.

Of the factors mentioned by McHugh J the following appear relevant.  First, there is nothing in the conduct of the respondent in this Court, or, as far as I know, any other court, which favours the applicant’s position.  The history of the proceedings in this Court and the conduct of the applicant in this Court do count against her.  There are two types of delay to be explained.  The first category is the delays that led to the deemed abandonment and the second category is the delays from 27 June 2005, when the applicant learned of the deemed abandonment, to 15 September 2005, when the summons was filed.

The only explanation offered for the first delay is that the solicitor for the applicant was unaware of the relevant rule.  This is not a satisfactory explanation because it may be inferred from the evidence that a Deputy Registrar told the solicitor for the applicant by letter on 24 December 2004 of the regime under the previous Rules, which is almost identical with the current regime. 

The only explanation of the second delay, which was rather obscurely advanced, is that between 30 June and late August the parties had been engaged in settlement negotiations.  That does not explain why steps were not taken to set aside the deemed abandonment simultaneously with the negotiations lest they fail.  Further, the applicant’s conduct of proceedings in this Court has been characterised by repeated applications for extensions of time to comply with the Rules which, though they have generally been granted, cannot be said to have been strongly supported.  On occasion these applications have been made after the time for compliance has expired.  The applicant’s solicitor also failed to attend the appointment with the Deputy Registrar to settle the index.

I should deal with those of the respondent’s submissions that turned on the question of whether or not the applicant personally had been deliberately flouting the Court’s Rules and whether the applicant personally was at fault.  Mr Hubbard, the solicitor for the applicant, swore an affidavit and either was or could have been made available for cross‑examination and those matters could have been explored with him in circumstances where he has endeavoured to give explanations which might or might not be particularly convincing.  I do not think it is open to draw inferences that his client personally was either deliberately flouting the Rules or was behaving in ways other than those to be inferred from the affidavit.

Here, the applicant’s delay in moving to set aside the deemed abandonment is less than three months.  The application for special leave to appeal is ready for hearing but for the filing of the appeal books which the applicant by implication asserts can be done within seven days.  The appeal can be heard soon, namely on 18 November 2005. 

Of the various types of prejudice to which the respondent has pointed, some are simply the type of prejudice inherent in an application of any kind for an extension of time succeeding.  The stress of the litigation is certainly a factor, but at least the first stage of it will not last for very long, or at least may not last for very long.  The removal of the vindication of the plaintiff’s reputation which was affected once the special leave application was deemed abandoned on 22 June 2005 I think falls into the same category as the vested right argument, namely that it is simply inherent in the success or otherwise of the application.  The extent to which there will be irrecoverable costs in any event is hard to assess but it is likely that the quantum would be relatively low.  In short, there certainly are some forms of prejudice to which the respondent has been exposed but they do not, to my mind, outweigh the arguments favouring the grant of the application.

The application for special leave is not inherently frivolous.  It is troubling that in a sense only $5,000 is in issue and it is even more troubling that perhaps underpinning the contest is not so much a question about the payment of $5,000 but the question as to who must pay the costs as ordered by the Court of Appeal in its revised judgment.

In all the circumstances, it seems to me that strict compliance with the Rules at this late procedural stage in the life of the special leave application, to use McHugh J’s words, would work an injustice upon the applicant.  It would work an injustice because it would deprive her of a chance to demonstrate sufficient prospects of success in an appeal to merit the grant of special leave.

Now, Mr Leopold, you mentioned that you were critical – and understandably so I think – of some of the orders.  Let me just read out some orders and we can perhaps see if they meet your concerns.  If not, we can revise them.  One order would be that the time within which the applicant was to comply with rule 41.05.1 be extended to 1 March 2005; (2) that the time within which the applicant is to comply with rule 41.09.11 be extended to 20 October 2005; (3) that the time fixed by rule 41.13.1 be extended to 20 October 2005; (4) that the applicant’s application for special leave to appeal remain on foot; and (5) that the applicant pay the respondent’s costs of the summons filed on 15 September 2005.  Apart from No (5), do you have any problems?

MR LEOPOLD:   In No (3) the rule number your Honour said was rule 41.13?

HIS HONOUR:   I said 41.13.1.

MR LEOPOLD:   Then I do not have any submission in relation to what your Honour read out other than to ask that costs be on an indemnity basis.  In the circumstances, they should not be able to pocket it all.

HIS HONOUR:   Yes.  What do you say to that, Mr McClintock?

MR McCLINTOCK:   Other than to say, your Honour, that there is no basis for departing from the ordinary rule as to costs, that is they should be costs on a party‑party basis, I have nothing to say.

HIS HONOUR:   Yes, thank you.  Before making the orders I should indicate that counsel for the respondent applied for an order that the applicant pay the respondent’s costs of the summons on an indemnity basis.  Counsel for the applicant opposed that course but assigned no reason why it should not be taken.  However benevolently one views the conduct of the applicant’s legal advisers, their conduct of the special leave application has been grossly unsatisfactory.  On that basis, the application in relation to costs made by the respondent in my opinion is a soundly‑based one.  I order:

(1)      That the time within which the applicant was to comply with rule 41.05.1 be extended to 1 March 2005;

(2)      That the time within which the applicant is to comply with rule 41.09.11 be extended to 20 October 2005 –

I should interrupt.  Mr McClintock, are you happy with orders (1) to (4)?

MR McCLINTOCK:   Yes, I am, your Honour.

HIS HONOUR:   Thank you.

(3)      That the time fixed by rule 41.13.1 be extended to 20 October 2005;

(4)      That the applicant’s application for special leave to appeal remain on foot;

(5)      That the applicant pay the respondent’s costs of the summons filed on 15 September 2005 on an indemnity basis.

The Court will now adjourn.

AT 10.06 AM THE MATTER WAS CONCLUDED