Von Risefer v Mainfreight International Pty Ltd (ACN 007 252 333)

[2009] HCATrans 308

[2009] HCATrans 308

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M80 of 2009

B e t w e e n -

ELIZABETH VON RISEFER

Applicant

and

MAINFREIGHT INTERNATIONAL PTY LTD (ACN 007 252 333)

Respondent

Application for reinstatement

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 24 NOVEMBER 2009, AT 10.22 AM

Copyright in the High Court of Australia

MS E. VON RISEFER appeared in person.

MR D.W. TAYLOR:   If the Court pleases, I appear on behalf of the respondent.  (instructed by Ward Taylor)

HIS HONOUR:   Ms von Risefer, this is your application by summons, dated 9 October 2009, in effect to extend the time for you to file some documents in support of your application for special leave.  Is that right?

MS VON RISEFER:   Yes, your Honour.

HIS HONOUR:   Before I hear further from you, Ms von Risefer, Mr Taylor, what is the attitude of the respondent to the application?

MR TAYLOR:   The respondent opposes the order sought in the summons, your Honour.

HIS HONOUR:   It is enough if I know that you oppose.  I will then hear from Ms von Risefer and then hear from you, Mr Taylor.  Now, Ms von Risefer, you rely, do you, on an affidavit which you have sworn on 9 October 2009?  Is that right?

MS VON RISEFER:   Yes, your Honour.

HIS HONOUR:   Yes, I have that.  Mr Taylor, is there any reason not to receive that affidavit?

MR TAYLOR:   No, your Honour.

HIS HONOUR:   Yes.  Ms von Risefer, you may take your affidavit as having been read.  As I understand it, what you seek is leave to file your notice of appeal and summary of argument which were due on 7 October.  You have applied on 9 October, which is, if you like, two days after the date it was due.  Maybe it is properly counted as one, not two; we will not delay about that.  You say can you have an extension of time, the matter can then proceed according to the ordinary processes and be dealt with in the ordinary course.  Is that right?

MS VON RISEFER:   Yes, your Honour.

HIS HONOUR:   Yes, perhaps if you would sit down?  Mr Taylor, you oppose the application.  I understand that you would wish to bring this to an end and bring it to an end promptly.  It occurs to me, however, that it sometimes may be the shortest way home to permit an extension of time because if the application for special leave to appeal were to be treated as deemed abandoned or otherwise terminated the applicant can always apply again and seek an extension of time and we are back to where we are now.

MR TAYLOR:   Yes, your Honour, if I could describe the opposition as formal opposition.

HIS HONOUR:   Yes.

MR TAYLOR:   No material has been introduced in opposition, so if I could categorise it as formal opposition.

HIS HONOUR:   Yes.  Subject to what you say to me, of course, Mr Taylor, my inclination is to grant the extension of time and to make the costs of the application for extension of time costs in the application.  The consequence of that would be for Ms von Risefer that if her application succeeds she will get the costs or they will go on to form part of the costs of any appeal.  If she were to fail, then, but only then, she would have to pay the costs of the default.

MR TAYLOR:   I am comfortable with that proposed order with costs, your Honour.

HIS HONOUR:   Yes.  Is there anything else you would wish to say, Mr Taylor?

MR TAYLOR:   No, your Honour.

HIS HONOUR:   Yes, thank you.  Well, Ms von Risefer, I am minded to give you the extension of time that you need.  The papers, I think, have not been filed, have they?  So that if I were to give you until – let me just make sure that I have my dates right, Ms von Risefer – if I were to say that you may have until 27 November, which is Friday next, at 4.15 pm, to file the draft notice of appeal and your summary of argument, and if I were to order that the costs of today’s application be costs in the application subject to one matter I – old habits die very hard, Ms von Risefer, 4.15 is ingrained in my head now some 12 years ago because of the Supreme Court – you can have until 27 November at 4.00 pm to file the draft notice of appeal and your summary of argument.  The costs of today’s application will be costs in the application.  Ms von Risefer, 4.00 pm Friday next is the last time.

MS VON RISEFER:   Your Honour, already the notice of appeal has been filed as an exhibit, so they are ready.  They were ready the next day, but thank you very much.

HIS HONOUR:   I understand that, but all I am emphasising to you is that Friday, 4.00 pm, is the last chance.

MS VON RISEFER:   Thank you.

HIS HONOUR:   Yes, well, there will be orders in those terms.  I will adjourn until 12 noon.

AT 10.30 AM THE MATTER WAS CONCLUDED