Tropeano & Anor v Riboni

[2007] HCATrans 440

[2007] HCATrans 440

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

Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 22 AUGUST 2007, AT 9.36 AM

Copyright in the High Court of Australia

MR A.W. SANDBACH:   I appear on behalf of the applicant in the application, respondent to the summons, if your Honour pleases.  (instructed by Septimus Jones & Lee)

MR P.R. RIBONI appeared in person.

HIS HONOUR:   Now, let me just understand what the application is.  The application is by a summons of 10 August 2007, is it not, and is an application, in effect, to terminate the proceeding summarily on the ground that the applicants are out of time for filing their summary of argument and draft notice of appeal, is that right, Mr Riboni?

MR RIBONI:   That is correct, your Honour.

HIS HONOUR:   Yes, and in support of that you rely, I think, on the affidavit which you have sworn, which is the affidavit of 10 August 2007, is that right?

MR RIBONI:   That is correct, your Honour.

HIS HONOUR:   Mr Sandbach, is there any objection to my receiving that affidavit?

MR SANDBACH:   No, your Honour.

HIS HONOUR:   Yes.  Mr Riboni, does it come to this?  You say the applicant is late and, that being so, they do not seem very interested in prosecuting it, bring it to an end?  Is that what it comes to?

MR RIBONI:   I do not know what their intentions are, your Honour.

HIS HONOUR:   I understand that.

MR RIBONI:   My case, or my application, is on the basis that they have had sufficient time, they have had notice from the courts, that they had even an extension which was, I believe, suggested on the basis of my appearing to the court in the first instance.  As I say in my affidavit, the court officer having consulted the court file advised that no summary of argument and draft notice had been received and that he would get in touch with the appellants, which he did, I assume, and as a result of that there was an extension of time.  There was no response, there was no documentation, there was no indications from the appellants that they wanted to do anything at all.

I came again with a document on 9 August with an application to have the matter dismissed.  I was told that that is not the right document and

I was sent away to prepare a summons and an affidavit, which I did.  I came back on the 10th early in the morning.  I think the court officers were at morning tea, I had to wait until after morning tea.  I then put in my summons and immediately went around to the offices of the solicitors for the appellants and served the summons and the affidavit and it was received by a lady on the counter, her name is Belinda.  I would like to also, if I may, your Honour, hand a document which sets out all the dates and what happened.

HIS HONOUR:   Perhaps if you show it to Mr Sandbach first.  Would you show it to Mr Sandbach first please, or have you got a copy?

MR SANDBACH:   I have a copy.

HIS HONOUR:   Yes, yes.

MR SANDBACH:   I have just been handed a copy, your Honour.

HIS HONOUR:   Yes.

MR RIBONI:   Your Honour, you will see that the judgment was on 23 May in the Supreme Court of Appeal.  Twenty eight days later, exactly 28 days later, an application for special leave to appeal to the High Court was lodged.  So they had, in effect, 28 days to decide whether they wanted to appeal or not and I am sure at that stage they had plenty of time to discuss amongst themselves what the rules of the Court were and they would have got advice from counsel.  On the 22nd ‑ ‑ ‑

HIS HONOUR:   The bottom line is they are out of time, you say, get on with it, full stop, is that not it?

MR RIBONI:   I say throw it out, your Honour, that is what I say.

HIS HONOUR:   Yes.  Perhaps I might be assisted by hearing from you, Mr Sandbach.

MR SANDBACH:   Thank you, your Honour.  Does your Honour have the affidavit of my instructor, Mr Lawler, sworn yesterday?

HIS HONOUR:   Yes, I do, yes.  Two questions, Mr Sandbach.  How much are we talking about in this litigation?

MR SANDBACH:   We are talking about, with interest, a sum of 200,000 or 300,000 hundred thousand I think it is, your Honour.

MR RIBONI:   If I may, your Honour ‑ ‑ ‑

HIS HONOUR:   No, Mr Riboni, you may not, sit down.  I am asking Mr Sandbach how much he says is at stake.  All right, your side says there is 200,000 or 300,000 at stake.  We are now about 90 days after the judgment of the Court of Appeal, what are you doing?

MR SANDBACH:   One of the things we are doing, your Honour, is drawing an affidavit which we consider necessary to support the application.

HIS HONOUR:   When are we going to see some papers, Mr Sandbach?  Why should we not bring this to a head now?

MR SANDBACH:   Your Honour, I am very confident we will have some papers within 10 days.

HIS HONOUR:   Well, 10 is too long, it is just too long.  You have had 90, get on with it.

MR SANDBACH:   Certainly, your Honour.  Of course, we are in the Court’s hands but we would be grateful for 10 if that were possible.

HIS HONOUR:   Well, maybe, but why should I give you 10?  I am not going to conduct an auction with you, Mr Sandbach, but I can tell you this, this litigation has now gone on for how long, how many years?

MR SANDBACH:   Far too many years.

HIS HONOUR:   Yes.  The events it concerns arose in what year?

MR SANDBACH:   The last millennium, your Honour.

HIS HONOUR:   Yes.  Your side of the record comes here out of time saying give us another 10 days.  Why?  Why should I?

MR SANDBACH:   Only, your Honour, because of the practicalities of having an affidavit sworn as well as the documents drawn.

HIS HONOUR:   Is the deponent not in Australia?

MR SANDBACH:   No, the deponent is not far away, your Honour.

HIS HONOUR:   So why can that not be done today?  Why could it not have been done after the summons was served?

MR SANDBACH:   The difficulty, your Honour, is that obviously the document which is now required, all the documents which are now required, are going to be critical to the appeal and it is important from my client’s point of view that they be done as well as they possibly can.

HIS HONOUR:   And they have had three months in which to think about it.

MR SANDBACH:   Yes, indeed, your Honour, indeed.  But it is because they do need to be drawn as well as they can be, but I would seek 10 days.  I cannot put it higher than that, your Honour.

HIS HONOUR:   What I am minded to do, Mr Sandbach, is to say that your side may have until Monday, 27 August at 4.00 pm.

MR SANDBACH:   If your Honour please.

HIS HONOUR:   Extend the time until Monday, 4.00 pm, 27 August.  Why should your side not pay the costs of today?

MR SANDBACH:   I do not resist that, your Honour.  I do not resist that.

HIS HONOUR:   Yes.  Mr Riboni, I understand what you say about delay, I understand about the need to bring this to a head.

MR RIBONI:   If I may, two things, your Honour?

HIS HONOUR:   Yes.

MR RIBONI:   The first thing is that if you go back to the Supreme Court of Appeal, we are not talking $300,000 or anything like it, we are talking $21,000 plus $67,000 of interest.  That is what currently stands in their favour, nothing else.  The 300,000 is a figment of their imagination and it would not be supported by any court.  It certainly was not supported by the Court of Appeal.

The second thing that I would like to draw the attention of the Court to is that at the actual appeal they had both Mr Sandbach and Mr Upjohn appearing for them, hence, the affidavit that was sworn yesterday by their solicitor which says that they could not get in touch with a counsel, the counsel was away, there were two counsels present who knew what the case was all about and one of those could have by now, 90 days later, have come up with a document which is required by the Court.  I further would like to draw the attention of the Court to the letter that I received from the High Court, and I shall quote from it.  It was signed by the Deputy Registrar, and the last sentence, or the semi‑last sentence says:

The Court regards compliance with these time limits as critical to the disposition of the application.  Accordingly, extensions of the time limits provided in Part 41 will only be granted in exceptional circumstances.

I do not for the life of me see that there are any exceptional circumstances in this case whatsoever.

HIS HONOUR:   Yes.  Mr Sandbach, why should I not make an unless order?  Unless on or before 4.00 pm, 27 August 2007 the applicants file and serve their summary of argument and draft notice of appeal and the application for special leave be dismissed for want of prosecution?

MR SANDBACH:   Only, your Honour, because that is a very short time to make a self-executing order.  If the order were not to be self-executing it would be ‑ ‑ ‑

HIS HONOUR:   It will likely be flouted.

MR SANDBACH:   No, it will not likely be flouted, your Honour, but it is going to be difficult obviously to comply and it would be highly undesirable to have a self-executing order with that short time.

HIS HONOUR:   Mr Sandbach, you come into this Court, the time limits are there for a purpose.

MR SANDBACH:   Certainly, your Honour.  I should just correct one thing that Mr Riboni has said and that is that my client had the choice of two counsel to consult.  My junior, in fact, is in the Solomon Islands on military service and has been out of the country and was certainly not available at the time.

HIS HONOUR:   Yes.  Anything else, Mr Sandbach?

MR SANDBACH:   No, your Honour.

HIS HONOUR:   Yes, thank you.

This application for special leave to appeal was commenced as long ago as 20 June 2007.  The applicants still have not filed their summary of argument and draft notice of appeal.  The respondent to the application for special leave seeks orders terminating the application summarily for want of compliance with the requirements of the Rules.  I am of the opinion that the applicants should have one last chance in which to remedy the defaults in which they presently stand.

I have given consideration to whether I should make a peremptory order providing for termination of the application for special leave in default of compliance with the extended time which I propose to fix.  On balance, I will not in the first instance make such an order.  I will extend the time by which the applicants are to file and serve their summary of argument and draft notice of appeal to 4.00 pm on 27 August 2007.  The applicants in the application for special leave will pay the respondent’s costs of today.

MR SANDBACH:   If your Honour pleases.

AT 9.50 AM THE MATTER WAS CONCLUDED