Taylor v Commonwealth Bank of Australia

[2007] HCATrans 437

[2007] HCATrans 437

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M14 of 2007

B e t w e e n -

MELVYN GREGORY TAYLOR

Applicant

and

COMMONWEALTH BANK OF AUSTRALIA

Respondent

Application for reinstatement

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 16 AUGUST 2007, AT 9.49 AM

Copyright in the High Court of Australia

MR M.G. TAYLOR appeared in person.

MR R.D. SHEPHERD:   If the Court pleases, I appear on behalf of the respondent.  (instructed by Commonwealth Bank Group Legal Services)

HER HONOUR:   Mr Taylor, what steps have you taken since the last occasion you were here at Court?  What steps have you taken to obtain legal representation?

MR TAYLOR:   I have gone a long, long way, your Honour.  I have got…..PILCH.  I have got a barrister assisting beyond the…..but I have not got no – I am trying to get somebody to instruct him.  He would have been here today but unless I can get somebody to instruct him, so I have got an appointment with some people this afternoon and I ask for a further 28 days because PILCH has granted me – and they are assisting with this barrister, and they are also assisting in trying to find an acting solicitor for him.

HER HONOUR:   Is your appointment this afternoon with a firm a solicitors, is it?

MR TAYLOR:   No, no, this guy is going to ring me back and he was going to be here today, but he could not do it so I will be waiting on a phone call when I get home.  So 28 days, because this barrister, he is assisting me, and he is assisting me on Monday also.

HER HONOUR:   Yes, very well.  I will ask you to sit down.

MR TAYLOR:   So 28 days, I think, and it is actually to the bank, I think.  I think I have gone with it this far so I think it should be ‑ ‑ ‑

HER HONOUR:   Yes, Mr Shepherd.

MR SHEPHERD:   The application is opposed.  On 4 May 2007 when the first application was returnable before the Court I opposed the application on behalf of the respondent.  I contended that the applicant had pursued numerous appeals in respect of interlocutory rulings in the Supreme Court and that they had little real prospect of success, and that the material which was then filed showed no reason to doubt the correctness of the decision below.

The applicant submitted, as he has today in substance, that he had approached the Victorian Bar Council and believed he had good prospects of receiving pro bono assistance.  He asked for an extension of time on that day until 8 June 2007 and the court acceded to his application.  Since then things have substantially changed.

The primary contention of the respondent is that there is no reason why the Court should further extend the time prescribed by rule 41.10.3 of the High Court Rules. Those matters are, and I will take the Court to the affidavit of Mr Peter Pouki sworn 10 August 2007, but in summary the applicant filed and served answers to interrogatories and an affidavit of documents pursuant to an order of Master Daly which was made on 15 June 2007.

Now, those steps were steps which were otherwise required to be taken by 20 and 27 October 2006 respectively by orders 5 and 8 of her Honour Justice Hollingworth made on 29 September 2006, and that, of course, is the order about which the applicant complained to the Victorian Court of Appeal in his application for leave to appeal which was dismissed on 1 December 2006.  So what he has done is to file this application, then he has done that which would have complied with those orders, but he still wants to advance the case that he should have special leave.

In my submission, that is inconsistent with what he has done.  But more significantly, the respondent obtained judgment against him for possession and debt on 17 May 2007.  The applicant applied to set that aside, and on 11 July 2007 that application was refused, and I refer to paragraphs 10 and 11 of the affidavit of Peter Pouki sworn on 10 August 2007.

So at present my client has judgment in the proceeding and the applicant is now applying, or has appealed to the judge in the Practice Court of the Supreme Court against the order refusing his application to set aside.  Now, in my submission, when one looks at the relevant principles to which I took the Court on the last occasion - Justice McHugh in Gallo v Dawson (1990) 93 ALR 479 – I can go through those again but they are well known ‑ ‑ ‑

HER HONOUR:   No, that will not be necessary.

MR SHEPHERD:   In essence, in this particular matter, bearing in mind that my client has a judgment and a right to retain that judgment at the moment, the history of the matter indicates that there is no reason to further extend the time.  In fact, in my respectful submission, there is futility in doing that because upon the application to set aside the judgment the court determined that there was no merit in the defence.

Moreover, the Supreme Court on appeal to the judge sitting in the Practice Court will determine again whether the defence has any merit, and if so, will grant leave to the defendant and accordingly he can pursue his proceeding, but it will not go back to the interlocutory stages which antedated the entry of judgment.  In my respectful submission, it will not

because what he had sought in his summons of 19 December 2005, which had been dismissed by a master of the court, was that he wanted documents which were under the effective control of the Federal Court.  The court did not have jurisdiction to do that.

He filed a defence, although he wanted to set aside his appearance, and those sort of matters are so early in the proceeding, now that we have judgment, once it is determined whether or not that judgment should be set aside then the matter will continue, the court will not go back to the earlier stages.  So my primary contention is that there is futility in making the order for further extension.

Then just on the discretionary matters, on the last occasion it was my contention in colloquial terms that the applicant had just got across the line because his explanation for delay was fairly skimpy, so to speak.  What he has done now is to just cut and paste, in effect, what he said in paragraph 6 of his affidavit sworn in support of his earlier application.  He deposed in paragraph 6 exactly what he deposes now in paragraph 10, that:

My endeavours to have the appointment with a firm of Legal Services to represent me since my earlier summons have not been fully explored.  I am continuing my efforts.

So in all the circumstances, in my respectful submission, the applicant’s reasons for the further delay are unpersuasive.  He has done two of the things that the order of Justice Hollingworth required, but he did them pursuant to an order of the master, and that was to file his answers to interrogatories and affidavit of documents.  Then in relation to the other aspects he is now applying to set aside a judgment which has been entered against him.

In all the circumstances, by reason of supervening events, in my submission, the matters that were balanced against my submission on the first application and led to it being granted are no longer persuasive.  The Court should, in my respectful submission, dismiss the application with costs.  If the Court grants the application, in my respectful submission, the applicant should be ordered to pay the respondent’s costs, and there should be a limited time within which it is ordered that the applicant comply.  They are the submissions I wish to make.

HER HONOUR:   Thank you, Mr Shepherd.

MR TAYLOR:   Well, Mr Shepherd ‑ ‑ ‑

HER HONOUR:   Mr Taylor, could you move a bit closer to the microphone, please?

MR TAYLOR:   I am sorry.

HER HONOUR:   Mr Shepherd is pointing out, as you would have heard, that there is certain futility in having a further extension of time.

MR TAYLOR:   Well, Mr Shepherd done the same thing about two weeks ago in another court, in my submission, and I got it adjourned off to 20 May – 20th of this month, on Monday.  Now, Mr Shepherd is referring to Justice Hollingworth’s rule that I did not comply.  Now, Mr Shepherd and the Bank also did not comply.  I will pass up Justice Hollingworth’s order, order No 16?  Now, the Bank had this on 20 February, and they had an authenticated order.  Mr Shepherd and I went before the court and it was not in the record.  I have been – and I think the Bank believed – the court could not find this thing in the record and I have searched around and I have got the order and I have got it authenticated on 27 July.

Now, on that date, on 18 April, that was for further directions – hearings directions, but what the Bank done on the same day, they went and issued a summons and got a costs order against me, so this order here has never been heard, and the interlocutories was the first time I had ever come before the court and I think it was a bit rough.  Mr Shepherd is saying, but see I have got – I will pass that order up to you.  They short circuited me on 18 April, your Honour, because they went and got a costs order instead of this in the directions hearing, because the court could not find it in the record.  I have been chasing around for months trying to find this.

Therefore, I ask for the 28 days because this Bank is not telling the truth.  Now, that was their responsibility to get that order authenticated and get it - they should have went before Master Efthim, not Justice Daly.

HER HONOUR:   In any event, you have told me that this afternoon you expect to know the outcome of your application to PILCH for a solicitor to instruct – for assistance in paying the fees of a solicitor?

MR TAYLOR:   Yes, yes, I have got that, I got that granted on the 13th, and the lawyer that drew up my submissions has done submissions to the Court last week, and he would do this up and he has got it adjourned off and we have combined the two together, Justice Daly’s, the full judgment, and the setting aside her order.  So I am waiting on a solicitor for instructions because….evidently I do not know, I thought you could with a pro bono did not have to have an instructing solicitor, but he advised me that you do.

HER HONOUR:   Is there anything further you want to say?

MR TAYLOR:   No, that is all, thank you.

HER HONOUR:   So you are attempting to get a solicitor instructed on a pro bono basis?

MR TAYLOR:   Yes, I have got a barrister on a pro bono basis at the moment.  He is very, very good.

HER HONOUR:   Yes.

MR TAYLOR:   He drew up a submission for me last year.

HER HONOUR:   Yes, very well, thank you.

MR TAYLOR:   Just one more thing, your Honour.

HER HONOUR:   Yes.

MR TAYLOR:   Now, I have got the bank statement.  Can you pass that up to her Honour?

HER HONOUR:   Yes.

MR TAYLOR:   On 20th of the 2nd, your Honour, you can see that was for a directions hearing.

HER HONOUR:   Yes.

MR TAYLOR:   But Mr Shepherd got up on that day and did not want it on the directions day, so my directions – hearing for directions was not heard.  They put in a summons for costs against me, so that was automatically – I have missed a hearing, and just like I said, that was the first time it had come before the court for the interrogatories and affidavit of documents.

HER HONOUR:   Yes.

MR TAYLOR:   You see, the Bank put in – you might see the Bank put in – on the 18th they put – and they bypassed that, because that order, they should – that was their responsibility and it should have went before Master Efthim, not Justice Daly.

HER HONOUR:   Yes.  Anything further?

MR TAYLOR:   No, that is all, thanks, your Honour, because I do not think it is going to prejudice the Bank in this matter.

HER HONOUR:   Thank you.

MR TAYLOR:   Excuse me, that is what I handed to the Court.  I will pass that up to her Honour too.

HER HONOUR:   Thank you.  Mr Shepherd, do you want to see these documents?

MR SHEPHERD:   Yes, thank you.

HER HONOUR:   I will pass them down to you and I will ask you to pass them back to Mr Taylor when you have had an opportunity to look at them.

MR TAYLOR:   Sorry, Mr Shepherd, I thought you had that.

MR SHEPHERD:   Yes, I have read those, thank you.

HER HONOUR:   Yes, thank you, if you would pass them back?  Mr Taylor, I will grant you a further 14 days within which to file a draft notice of appeal ‑ ‑ ‑

MR TAYLOR:   Yes.

HER HONOUR:   ‑ ‑ ‑ and a summary of argument.  It will be very important ‑ ‑ ‑

MR TAYLOR:   You could not make it 21, your Honour, because like I said, PILCH – it is very hard to find somebody?

HER HONOUR:   Very well, I will make it 21.  It will be very important that you attend to the matters and ensure that once you have a pro bono solicitor allocated, as you are confident you are going to have this afternoon, it is most important that this time limit be met.

MR TAYLOR:   Yes, I have walked miles, your Honour.  It is not for the want of trying.

HER HONOUR:   Mr Shepherd, in all the circumstances where I am being informed that a barrister pro bono has been arranged and a solicitor pro bono is being arranged, I am inclined to grant a further extension on the basis that the respondent’s costs of today should be paid by the applicant and we will just have to wait and see what transpires once that time period has come to pass.

MR SHEPHERD:   If your Honour pleases.

HER HONOUR: This is an application for an extension of time in which to file a draft notice of appeal and a summary of argument in support of an application for special leave to appeal under rule 41.05 of the High Court Rules 2004 (Cth). The applicant has already been granted one extension of time. The first application for an extension of time was heard before me on 4 May 2007. The applicant submitted that he was waiting for pro bono legal representation to be approved. He submitted he would only need an extension of 21 days and that he was eager to have the matter determined.

An extension of time was granted and he was ordered to file his draft notice of appeal and summary of argument by 4.00 pm on Friday, 8 June 2000.  On Friday, 8 June 2000 the applicant filed this application for a further extension of time.  The respondent opposes the application.  The applicant has pointed to no new grounds that would support an extension of time and does not appear to have made significant progress in obtaining legal representation.  He stated, however, today that PILCH has arranged for a barrister to represent him on a pro bono basis, but he does not yet have a solicitor arranged to instruct that barrister.  He informed the Court he expects to be granted the services of a solicitor provided on a pro bono basis by this afternoon.

This application relates to an interlocutory step in litigation which has been continuing since 2005.  Since the first application for an extension of time was heard before me further steps have been taken in other courts with respect to other parts of the litigation.

In all the circumstances I grant a further extension of 21 days.  I order that the applicant file and serve a draft notice of appeal and summary of argument by 4.00 pm on Thursday, 6 September.  I further order that the applicant pay the respondent’s costs of today.

MR SHEPHERD:   If the Court pleases.

MR TAYLOR:   Thank you, your Honour.  That is my birthday, 6 September.  Thank you.

HER HONOUR:   Well, do not let your birthday distract you too much from your obligations to comply with the Court order.

MR TAYLOR:   No, your Honour, I am trying, your Honour.

HER HONOUR:   Very well.

AT 10.10 AM THE MATTER WAS CONCLUDED