Willoughby & Anor v Clayton Utz & Anor

[2010] HCATrans 79

[2010] HCATrans 079

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth     No P8 of 2009

B e t w e e n -

JOHN FRANCIS WILLOUGHBY

First Applicant

MICHAEL STEPHEN WILLOUGHBY

Second Applicant

and

CLAYTON UTZ

First Respondent

BERYL FRANCES WILLOUGHBY

Second Respondent

Application for reinstatement

KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO PERTH

ON FRIDAY, 26 MARCH 2010, AT 1.34 PM

Copyright in the High Court of Australia

MR J. WILLOUGHBY appeared in person for the first applicant.

MS K.F. BANKS‑SMITH:   If the Court pleases, I appear for the first respondent.  (instructed by Freehills)

HER HONOUR:   Mr John Willoughby, is it?

MR WILLOUGHBY:   Yes, your Honour.

HER HONOUR:   You are appearing in this matter?

MR WILLOUGHBY:   I am.

HER HONOUR:   Is Mr Michael Willoughby present in Court?

MR WILLOUGHBY:   No, he is not present, your Honour.

HER HONOUR:   Thank you.  Nor is the second respondent, Mrs Beryl Willoughby?

MR WILLOUGHBY:   No, my mother is not present either, your Honour.

HER HONOUR:   Thank you.  I take it, Mr Willoughby, that your material in support of the application for reinstatement includes the two affidavits filed on 21 December 2009 and 19 January 2010.

MR WILLOUGHBY:   Yes, your Honour.

HER HONOUR:   Thank you.  Ms Banks‑Smith, you rely upon the affidavit of Mr Goodman, I think, filed on 9 February?

MS BANKS‑SMITH:   Yes, that is correct and there is also an outline of submissions which was filed on 24 March, your Honour.

HER HONOUR:   Yes, thank you.  I have received those and read them.  Mr Willoughby, one matter which I think you need to address – obviously the question is what steps were taken with respect to ensuring that the notice of appeal was amongst the documents and why that was not the case and a matter which is referred to in the first respondent’s summary of argument, namely, that your version of events does not exactly tally with that of the solicitor who gives you advice from time to time.

MR WILLOUGHBY:   Your Honour, I have been actually through the – if I could take you to the transcript of Justice Bell, your Honour ‑ ‑ ‑

HER HONOUR:   Yes, I have actually read that.

MR WILLOUGHBY:   Yes.  Just to paragraph 430 on page 11.

HER HONOUR:   Yes.

MR WILLOUGHBY:   Your Honour, I did file – I just thought that Justice Bell was telling me there that – the document we are talking about, the Court of Appeal document, I did actually file that at the Court of Appeal, the Western Australian Court of Appeal and I did not get these orders till a week after I was deemed abandoned, but I was actually under the impression from Justice Bell that that is where that document had to go and that is actually where I took it and filed it.

HER HONOUR:   I am not sure that I understand what you are saying.  I do not understand her Honour to be telling you to file your notice of appeal anywhere.

MR WILLOUGHBY:   She says:

I think you have filed a number of those but not the [draft] notice of appeal in the Court of Appeal.

I assumed she was talking about the Court of Appeal – look, I know it was a dumb thing to do, with the benefit of hindsight, but ‑ ‑ ‑

HER HONOUR:   You are not inexperienced.  Why would you think that you would need to file a notice of appeal in the Court of Appeal when that court has already concluded the matter?

MR WILLOUGHBY:   I did not really think that much about it.  I just really followed what I thought Justice Bell told me to do.

HER HONOUR:   The matter that I have referred to earlier, which is raised in the first respondent’s submissions, is that your version of events was that you actually took the notice of appeal to the High Court Registry in Perth.

MR WILLOUGHBY:   Yes, I did.

HER HONOUR:   But that an officer did not wish to accept it.

MR WILLOUGHBY:   Well, not did not wish to; we had a bit of a discussion there with the Registry staff over the filing and agreed that I should file that at the Western Australian Court of Appeal which I subsequently did.

HER HONOUR:   It seems a rather unusual thing for a person in the Registry to do.  The point I think they make is that this is not what your solicitor said in his email which is marked DRG1 to the affidavit of Mr Goodman.  He says that you – and you must have told him, presumably, this information – that you and the Registry staff went through the material and it was just not there.  His version does not marry ‑ ‑ ‑

MR WILLOUGHBY:   I am sorry, that the document was not there?

HER HONOUR:   It does not appear it was.  You went through the material and neither of you realised the document was not there.

MR WILLOUGHBY:   I did not have my solicitor with me on the day. I was actually in Perth at the Registry.

HER HONOUR:   I think the point that they are making is that there is no reference in his version of events to this discussion where the Registry staff tell you to go to the Court of Appeal and file it there.  That is really what I think they are saying calls for explanation from you.

MR WILLOUGHBY:   Your Honour, I was there on the day.  I did have that conversation with the Registry staff.

HER HONOUR:   Yes, but the point is, why does your solicitor have another version of events?

MR WILLOUGHBY:   Is it after?

HER HONOUR:   It is the annexure marked DRG1 to Mr Goodman’s affidavit.  It is an email of 11 November.

MR WILLOUGHBY:   I am sorry, your Honour.  It is on Mr Goodman’s affidavit?

HER HONOUR:   Yes.  It is an annexure to his affidavit, DRG1.  Do you want a moment to read it?

MR WILLOUGHBY:   No, your Honour.  I think I am on the page:

On Monday 26 October 2009 John attempted to file the draft Notice of Appeal and Written Case and was told by the Registry staff ‑ ‑ ‑

HER HONOUR:   That is it.  Just read it to yourself so you can understand what your solicitor is saying he has been told presumably by you.

MR WILLOUGHBY:   Yes.  Your Honour, I have read that email.  That is about what happened at the Court of Appeal.  I did have the document but I honestly thought I was following Justice Bell’s direction there, that I had not filed – that I needed to refile that document at the Western Australian Court of Appeal.  I actually had it at the High Court.  I could have – I should have filed it.  I just did not have enough – even if I had over‑filed at the High Court.  But I did honestly think I was following Justice Bell’s direction.  I still had three days available to me to have that rectified except that when I file in Perth it goes into a mail bag.

HER HONOUR:   Yes.  It takes a while to get across to Canberra.

MR WILLOUGHBY:   It took 16 days apparently.

HER HONOUR:   I do not think it took quite that long.  It was received in Canberra on 28 October, I think.

MR WILLOUGHBY:   A day later.  I think there is a letter from Ms Cheetham there where she ‑ ‑ ‑

HER HONOUR:   I think they usually go by overnight courier, you will find.

MR WILLOUGHBY:   Your Honour, I was not actually notified of the deemed abandoning until – it was a few weeks later.

HER HONOUR:   Until November.

MR WILLOUGHBY:   Yes.

HER HONOUR:   Yes, I see.

MR WILLOUGHBY:   I actually thought it was progressing at that stage.

HER HONOUR:   You have not filed any written submissions, so what submissions do you wish to make?  I wanted to draw that matter to your attention for specific comment, but what other submissions do you wish to make?

MR WILLOUGHBY:   Your Honour, the submission I would like to make there is that while it was a silly thing to do, obviously, the misfiling, I certainly was not abandoning the case there.  Your Honour, there seems to be now, like, there are three different types of High Court Registries.  If you are a legal firm you can file electronically.  If you live in Canberra you can walk down to the Registry and – if I was a Canberra resident, they would have told me – it would not have to be faxed off or mail bagged to

Canberra, do you get what I mean?  So there is a second type of applicant.  Then there is a third applicant, self‑represented, who has to file through what the High Court described to me as the mail box.  But I still actually had three days of ‑ ‑ ‑

HER HONOUR:   I think the real question, though, is your explanation for what occurred, or for what did not occur.

MR WILLOUGHBY:   Your Honour, my honest explanation there is that I honestly thought Justice Bell told me to – I thought I was following Justice Bell’s direction there.

HER HONOUR:   All right.  I might hear from Ms Banks‑Smith.  Ms Banks‑Smith, I am particularly interested to understand, there is an implication of prejudice in your written submissions but I could not quite understand the actual prejudice that is put forward.

MS BANKS‑SMITH:   Yes, the prejudice relied on by the first respondent is that there is currently a bankruptcy petition before the Federal Court.  The life of that petition has been extended, as I understand it, on several occasions, and it is due to expire on 5 June.

HER HONOUR:   But that was the same position that was confronting Justice Bell.

MS BANKS‑SMITH:   Correct, your Honour, except now that we are pushing up even harder against the date of 5 June, and so the prospect of the special leave application being resolved in that period is less.

HER HONOUR:   It cannot be said that it could be not heard, though.

MS BANKS‑SMITH:   I agree with that, your Honour.

HER HONOUR:   The question really is, I suppose there are two, whether or not there is a sufficient explanation provided and whether or not a further opportunity should be provided.

MS BANKS‑SMITH:   Yes, and with respect to the first issue, there is little to add, in my submission, to what has already been put in the written summary, except that we now hear a slightly different version of events again which is that Mr Willoughby relies on that particular paragraph of the transcript in saying that he understood that to mean he had to file the document in the Court of Appeal, which does not quite explain why he took it the High Court Registry.  So there are various versions of what went on, or did not go on, and we say that those matters go to the exercise of a discretion. 

With respect to prejudice, there is no new prejudice except that the time period with respect to the bankruptcy petition is now tighter and that that looms closer, and the petition cannot be further extended.  There is, of course, an overriding prejudice argument which is also referred to in our outline, which is really the general undue delay litigation submission, and I do not put it any higher than as is summarised in the outline.  It is now over a year since the decision of the Full Court of Western Australia was delivered and none of the timeframes have been complied with during that period by the applicant.

HER HONOUR:   Yes.  What other timeframes, can you just remind me, were not complied with?

MS BANKS‑SMITH:   Yes.  The Full Court delivered its reasons in February 2009.  The written application for leave to appeal was not filed until April 2009, so that was outside the statutory period.  The abandonment then took effect and it was not until 18 May that an application to reinstate was brought.  Sorry, that was wrong, your Honour.  The 18 May was the day the abandonment took effect.  There was then a delay of two months until the first reinstatement application was brought, which was 23 July.  That was not complied with, as we know, and then there was the second reinstatement application, and that was not brought until another couple of months after the abandonment had taken effect.  I am not sure of the exact date that the current application was filed, but it was served in January and the abandonment had already taken effect in that October, as we know, so there was another delay in getting this application.  So there has been two lots of non‑compliance, there has been applications brought out of time and we say that those matters should go to the exercise of a discretion with respect to delay.

HER HONOUR:   Yes.  Thank you.  What do you say in response to those matters?

MR WILLOUGHBY:   Your Honour, first, some of the delay in there is court time, you know, the one – I had six weeks turnaround on a document that my brother’s middle name was wrongly spelt on.  There is a lot of court procedure in there.  It is not as cut and dried as the other side is trying to say there, that I did not bring that application for 40 days.  I brought the application straight away.  The rest of it is court procedure time.  Your Honour, it was a blunder not filing, but I have never at any stage, nor has the other side, ever been given any reason to think that I was abandoning it.  So I cannot see that there is so much – the other side is prejudiced by that.  On top of the fact, your Honour, that I have got that one piece of paper to file and the filing is complete.  It might not sound like much money, but I have got $1,505 for the application.  I have got $380 for

the summons application.  It might not sound like much money, but I would not mention it if it was zero.

HER HONOUR:   No, I understand.  Thank you.

MR WILLOUGHBY:   Thank you.

HER HONOUR:   The application for special leave in this matter was filed on 20 April 2009 and deemed abandoned on 18 May 2009 by operation of rule 41.10.4 for failure to file documents required by the rules.  On 14 October 2009, Justice Bell made orders reinstating the application and ordered the applicants to file their written case, draft notice of appeal and the documents prescribed by rule 41.10.3 by 28 October 2009.  The deemed abandonment date was then 29 October 2009.

One of the documents necessary to be filed in compliance with rule 41.10.3(c) was the notice of appeal to the Court of Appeal of Western Australia.  Documents were presented at the Perth Office of the Registry of this Court and received in Canberra on 28 October 2009.  The notice of appeal was not amongst them.  On 29 October 2009, the appeal was deemed abandoned. 

The first applicant’s attention was specifically directed to the requirement that the notice of appeal be filed, by both Justice Bell and the Deputy Registrar.  Justice Bell noted that it had not been filed by the time of the hearing on 14 October 2009 and inquired whether the first applicant would be in a position to file that document within time. 

The first applicant, who was the only applicant appearing today, explained to me the possibility of a misunderstanding as to what her Honour was saying, if a sentence in the transcript is to be read literally.  Even if I accept that to be the case, and it is not entirely apparent to me that it is, that would not overcome the other directions given by the Deputy Registrar in this regard.  It follows that a full explanation of how the document came to be overlooked is essential. 

It is difficult to accept the applicant’s version of what occurred.  The first applicant says that he attempted to file the document with other documents on about 25 October 2009 but that the Registry staff did not accept it and told him that it should be filed in the Court of Appeal of Western Australia.  He only heard of the deemed abandonment of the application on 6 November 2009.  This version does not accord with what the first applicant apparently told his solicitor and which the solicitor relayed in correspondence with the first respondent’s solicitors.  On that version, on 26 October 2009 the first applicant attempted to file the document and the written case but was told by the Registry staff that other documents also needed to be filed.  He returned on 28 October 2009.  He and the Registry staff went through the list of documents required to be filed in compliance with Justice Bell’s order, but he said, “It seems the notice of appeal was overlooked”.  If the events of 28 October did occur, it is difficult to accept that neither the Registry staff nor the first applicant were alert to the missing document.

It should be observed that, although the applicants are unrepresented, the first applicant has by now had substantial experience in litigation.  I am not satisfied with the explanation provided.  Moreover, it is not obvious to me why a further opportunity should be provided in the face of clear directions as to what needed to be done and in the face of a delay of over one year since the decision of the Court of Appeal.

Some possible prejudice was pointed to by the first respondent.  Petitions to sequestrate the estate of the applicants have now been adjourned on four occasions.  At the time Justice Bell heard the last application for reinstatement the petitions had been extended to 5 June 2010 and could not be further extended beyond that date.  That position, however, does not mean that an application for special leave could not be determined prior to that time.  I have not, therefore, given great weight to possible prejudice.

My reason for refusing the application is principally the failure on the part of the applicants to provide a cogent explanation for non‑compliance with the rules.  The application is therefore dismissed. 

Is there anything further?  Very well.  Adjourn the Court.

AT 1.55 PM THE MATTER WAS CONCLUDED