Tropeano & Anor v Riboni

[2007] HCATrans 543

[2007] HCATrans 543

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M70 of 2007

B e t w e e n -

SAMUEL JOHN TROPEANO AND ROCK TEMPONE

Applicants

and

PAULO RICARDO RIBONI

Respondent

Application for special leave to appeal

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 19 SEPTEMBER 2007, AT 9.31 AM

Copyright in the High Court of Australia

MR A.W. SANDBACH:   I appear on behalf of the applicants, if your Honour please.  (instructed by Septimus Jones & Lee)

MR P.R. RIBONI appeared in person.

MR SANDBACH:   I must firstly apologise for the lateness in preparation of the summary and the draft notice and the affidavit.  It has now been prepared and served on Mr Riboni and we have a copy for filing.  I cannot resist an order for costs and, as I say, I reiterate our apology for the lateness. 

HIS HONOUR:   The question, Mr Riboni, is what do we do?

MR RIBONI:   Your Honour, I have just received that about 10 minutes ago.

HIS HONOUR:   I understand that.  Perhaps if you would be good enough to come to the central lectern so that the microphone can record you, Mr Riboni?  What do you say we should do?

MR RIBONI:   My affidavit clearly states what my position is and my position is that they failed to perform, they abused the Court’s generosity, giving them two extensions.  At the last time that we were here it was said that they would be allowed one last chance, they have had that last chance, and I believe that under the circumstances and in the present case they have had more than four months to prepare the documents.  They have just prepared them and handed them to me two or three minutes ago and I think under those circumstances they really should not be allowed to go on any further.

HIS HONOUR:   Yes.  Well, Mr Sandbach, what do you say?

MR SANDBACH:   I submit, your Honour, that the applicant has not demonstrated the slightest shred of prejudice.

HIS HONOUR:   Why not, Mr Sandbach?  The applicant has been subject to this application for special leave for how long now?

MR SANDBACH:   A lot less time than it would ordinarily take to reach a conclusion.

HIS HONOUR:   Maybe, with your side doing nothing whatever to indicate any intention to prosecute this application.

MR SANDBACH:   We certainly have indicated an intention to do that.

HIS HONOUR:   Well, little practical indication of the slightest intention of prosecuting this application for special leave with anything like the diligence that might ordinarily be expected of litigants or practitioners advising litigants in this Court.  It is unsatisfactory, Mr Sandbach.

MR SANDBACH:   Yes, it certainly is, yes.

HIS HONOUR:   It is unsatisfactory to a marked degree.

MR SANDBACH:   Yes, it certainly is, your Honour, and it is for that reason ‑ ‑ ‑

HIS HONOUR:   What is the explanation for it, Mr Sandbach?  Where do I go to find an affidavit that explains this conduct?

MR SANDBACH:   The explanation, your Honour, is that the applicants have focussed their attention on completing the work so that it could be at hand for today and, as I indicated, your Honour, the applicants are conscious that it is highly desirable to have the case put as it ought to be at the outset and rather than having some chopping and changing along the way as to how the case is put, the applicants sought to put the case in proper form from the outset and that is what we have sought to do.

We have certainly been conscious that whilst the matter has taken longer than it should have done to get to this point, there is really nothing which has been said by Mr Riboni, and really nor could there be, to indicate that this is an application without merit.  It certainly is an application with substantial merit and that is something which it is appropriate for the Court to have before it in proper form.

HIS HONOUR:   Who has the benefit of the order below?

MR SANDBACH:   The balance of the order below benefits my clients but a significant part of that has been eroded by the Court of Appeal.  So what occurred is that the Court of Appeal reduced the net benefit of the order of the trial judge and the effect of this application would be to restore the entirety of the net benefit if successful.

HIS HONOUR:   I understand that but as things stand, after the Court of Appeal, who has the benefit of the order?

MR SANDBACH:   The applicants.

HIS HONOUR:   How much is at stake if the Court of Appeal’s order is left as it stands?

MR SANDBACH:   It was wrongly indicated to your Honour that there was a large amount on the last occasion.  The difference would be the amount of the work in progress which the Court of Appeal held ought to have been left by comparison with the amount in the accounts together with very many years interest on that sum.

HIS HONOUR:   Mr Tropeano and Mr Tempone obtained from the Court of Appeal – or the result of the Court of Appeal is that they are left with judgment which, with interest, totalled under $70,000, is that right?  Paragraph 47 of the judgment.

MR SANDBACH:   Yes.

HIS HONOUR:   And has that judgment been satisfied?

MR SANDBACH:   No, it has not, your Honour.

HIS HONOUR:   Yes.  So we are fighting over a judgment presently standing at 70,000 and at trial the order was one which effectively gave judgment in an amount of what?  About 300,000?

MR SANDBACH:   Yes, 300,000, your Honour, that is right.  It was that figure that I had in mind as the amount in issue.  That is the initial ‑ ‑ ‑

HIS HONOUR:   Mr Sandbach, why should your side not pay costs as between solicitor and own client at once?

MR SANDBACH:   I cannot resist that, your Honour.

HIS HONOUR:   Yes, thank you. 

MR RIBONI:   If I may, your Honour?

HIS HONOUR:   Yes, Mr Riboni.

MR RIBONI:   The situation as I see it, your Honour, is that they have had four months in which to prepare.  The last time we were here you gave until 27 August to prepare the documents.  On 27 August they contacted my office and asked for an extra two days at which time it would be ready, presumably, because they had only asked for two days, not for another fortnight or more.

They have not prepared the documents, they were not ready by the 27th, they were not ready by the 29th, which is the date that they assumed they would have it ready and today being 19 September they produced the documents.  If today had not been called and it was in October I wonder, I

very much wonder, whether I would not get them in October, the documents.  This is, as far as I am concerned, a complete and utter disregard for the Court and the Court’s rules and I do believe that your Honour has no choice but to throw the thing out.  Thank you.

HIS HONOUR:   Yes, thank you, Mr Riboni.

On 20 June 2007 the applicants filed application for special leave to appeal against orders of the Court of Appeal of Victoria that were made on 23 May 2007.  By those orders the Court of Appeal set aside the judgment that had been entered in favour of the applicants in this Court and ordered that judgment be entered in their favour for a substantially smaller sum than the amount of the judgment that had been entered at trial. 

The applicants, being dissatisfied with this outcome, applied for special leave to appeal to this Court.  The applicants have not prosecuted their application for special leave with anything like the diligence and attention that ought reasonably to be expected of litigants seeking to obtain special leave to appeal in this Court. 

Mr Riboni, the respondent to the application for special leave, sought to bring matters to a head by causing the issue of a summons seeking summary termination of the application for special leave.  On 22 August 2007 that application came on for hearing and on that day I extended the time by which the applicants were to file and serve their summary of argument and draft notice of appeal to 4.00 pm on 27 August 2007.

Despite that order and the indulgence thus afforded to the applicants, the applicants did not file or serve either their summary of argument or their draft notice of appeal by the time appointed.  Indeed, it was not until today, as I would understand it, that the applicants have chosen to serve their summary of argument and draft notice of appeal upon Mr Riboni and today they seek to file those documents.

The applicants not having complied with the orders made on 22 August 2007, Mr Riboni again sought to bring matters to a head by applying on 12 September 2007 for orders that the application for special leave be terminated summarily.  It is the summons issued by Mr Riboni on 12 September 2007 that now falls for determination. 

There is much to be said in favour of Mr Riboni’s proposition that the applicants in this Court have shown scant regard for the procedures and orders of this Court.  There is much to be said for Mr Riboni’s contention that the applicants have indicated as clearly as they may an unwillingness to prosecute their application for special leave with proper diligence.  It is not possible to determine where the fault for this conduct lies, whether it lies with the applicants themselves or lies elsewhere.  It is unprofitable therefore to speculate upon who should bear responsibility for this unfortunate series of events.

The applicants state that they wish to prosecute their application for special leave.  It is they who seek to obtain a judgment against Mr Riboni larger than the judgment which was entered following the decision of the Court of Appeal.  Mr Riboni remains subject to the threat posed by the pendency of the application and remains subject to the inevitable stresses of litigation that attend that pendency.  Moreover, he remains subject to the commercial risks and difficulties that necessarily follow from the uncertainty attending the amount that it is said by the applicants that he owes them.

These considerations are not without weight.  In the end, however, the applicants having produced the documents they rely on, it seems to me that I should not interrupt the further conduct of the application for special leave.  It is as well to record, however, that the applicants will now be afforded a second opportunity to continue prosecution of their application for special leave.

As things presently stand, it would seem to me that any want of compliance by the applicants with further obligations imposed upon them by the rules could lead only to the inference that the application for special leave is not prosecuted for proper purposes but is prosecuted for purposes simply of harassment and delay.  That would be a large conclusion to reach.  It is a conclusion, however, that would need close consideration were there to be any further default of even the slightest kind by the applicants in their further prosecution of this application for special leave.  It is a conclusion that would require close examination because of the manner in which the application hitherto has been conducted.

In all the circumstances, Mr Riboni’s application by summons of 12 September 2007 will stand dismissed.  Nonetheless, in all the circumstances there can be no doubt but that the appropriate order for costs is that the applicants pay the costs of and incidental to that summons, including today’s costs, to be fixed on an indemnity basis.  It is further ordered that those costs be paid forthwith.

AT 9.49 AM THE MATTER WAS CONCLUDED