Willoughby & Anor v Clayton Utz & Anor

[2009] HCATrans 278

[2009] HCATrans 278

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

Summons for reinstatement

BELL J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 14 OCTOBER 2009, AT 2.57 PM

Copyright in the High Court of Australia

MR J.F. WILLOUGHBY appeared in person.

MR P.C.S. VAN HATTEM SC:   May it please the Court, I appear for the first respondent.  (instructed by Freehills)

HER HONOUR:   Is Michael Stephen Willoughby here?

MR WILLOUGHBY:   No, Michael is not here, your Honour.  He could not attend.  He is working.  He is about 1,000 kilometres away.

HER HONOUR:   I see, and the second respondent, Beryl Francis Willoughby, is there any appearance for her?

MR WILLOUGHBY:   No, there is not.

HER HONOUR:   Thank you.  Yes, Mr Willoughby.

MR WILLOUGHBY:   Your Honour, I do not know what you have got there.  I have got a summary of argument there that I have put to the Court.  It is only a page.  I could just sort of start on that.

HER HONOUR:   Yes.  Perhaps, Mr Willoughby, do I understand that you wish to rely on the affidavit that you swore on 21 July 2009?

MR WILLOUGHBY:   I think that is the one, your Honour.

HER HONOUR:   Yes.  In addition to that, you have filed a summary of argument and that is a summary of argument in relation to the application to reinstate the application for special leave.

MR WILLOUGHBY:   It is, your Honour.

HER HONOUR:   Yes, all right.  Now, Mr van Hattem, is there any objection to any part of the affidavit?

MR VAN HATTEM:   No, your Honour.

HER HONOUR:   Yes, very well.  Well, Mr Willoughby, I think I understand the basis of your application and subject to anything you want to put to me at this stage it might be convenient if I turn to Mr van Hattem.

MR WILLOUGHBY:   That is fine by me, your Honour.  So if I can just say, so it will be a bit more informal this hearing, I do not need to present first?  I am quite happy to do that.

HER HONOUR:   I understand that.  What I had in mind was just taking up some matters with your opponent, Mr Willoughby, and then I will come back to you.  I am not going to deal with ‑ ‑ ‑

MR WILLOUGHBY:   Your Honour, I am quite happy for you to do whatever you deem.

HER HONOUR:   Yes, very well.  Yes, Mr van Hattem.

MR VAN HATTEM:   Your Honour, the first respondent opposes the application. 

HER HONOUR:   Yes.

MR VAN HATTEM:   I read the affidavit of David Ronald Goodman sworn on 7 October 2009.

HER HONOUR:   Yes.  Now, Mr Willoughby, you have seen Mr Goodman’s affidavit, have you?

MR WILLOUGHBY:   I have, your Honour.

HER HONOUR:   Do you have any objection to any part of that?

MR WILLOUGHBY:   Well, I do actually.

HER HONOUR:   I see.  Well, perhaps if you could just identify.

MR WILLOUGHBY:   Well, when I say “objection”, he says in section 10, paragraph 5 that:

Eventually the Applicants abandoned all claims based upon or arising out of the Trade Practices Act –

HER HONOUR:   I am sorry, where are you?  What paragraph number?

MR WILLOUGHBY:   Paragraph 5.

HER HONOUR:   Paragraph 5, I am sorry. 

MR WILLOUGHBY:   The heading is “Background”.

HER HONOUR:   Yes, I see.

MR WILLOUGHBY:   It has a pagination on the side so it is right near the 10 there.

HER HONOUR:   Yes, I have the paragraph.

MR WILLOUGHBY:   Sorry, your Honour.  He says:

Eventually the Applicants abandoned all claims based upon or arising out of the Trade Practices Act, and the matter was transferred to the Supreme Court of Western Australia.

They were never transferred.  Nobody had the trade practices there, so it was never a trade practices ‑ ‑ ‑

HER HONOUR:   I must say I had read it in that sense, Mr Willoughby, that is, that the claims arising out of asserted contraventions of the Trade Practices Act were not proceeded with, and so the matter that was transferred to the Supreme Court of Western Australia did not include those claims which had earlier been propounded.  Is that right?

MR WILLOUGHBY:   No, that is not quite right.  They were never sold to either party.  This is a bit unusual this case ‑ ‑ ‑

HER HONOUR:   They were never?

MR WILLOUGHBY:   Well, both parties to the action have actually owned this case at various times.  I do not know how much ‑ ‑ ‑

HER HONOUR:   Mr Willoughby, I wonder if I can short circuit this in this respect.  At this stage it is by no means apparent to me that there is any relevant matter arising out of the history insofar as the Trade Practices Act causes of action are concerned. 

MR WILLOUGHBY:   Your Honour, you are probably right.  Aside from that, which is a glaring point for me, a mistake there in his affidavit, I am quite happy with his affidavit.  There were a few things that I dispute but the trade practice itself, they were – I do not know, your Honour, how much you read of the background of this case.

HER HONOUR:   I have looked at the judgment of the Court of Appeal, so that has informed me in a broad way.  But what I am concerned with, Mr Willoughby, at this stage are the principles that are to be applied in considering whether your application should be reinstated.  That does not require that I have a thoroughgoing knowledge of this rather lengthy litigation.  Do you understand?

MR WILLOUGHBY:   I do, your Honour, except that I do think that you need to understand there that the merits of the case have never been ‑ ‑ ‑

HER HONOUR:   I understand that, Mr Willoughby.  All right.

MR WILLOUGHBY:   Thank you, your Honour.

HER HONOUR:   Yes, Mr van Hattem.

MR VAN HATTEM:   Thank you, your Honour.  In addition, there are submissions filed by the first respondent.

HER HONOUR:   Yes, I have those, thank you.

MR VAN HATTEM:   May I take those as read.

HER HONOUR:   I have had the opportunity to read the submissions and each of the affidavits that the parties have respectively relied upon.

MR VAN HATTEM:   Thank you, your Honour.  There is one issue on page 6 of the submissions at line 20, where it is asserted that if the matter resumes in the Supreme Court there are “no pleadings in place”.  May I correct that ‑ ‑ ‑

HER HONOUR:   Yes.

MR VAN HATTEM:   ‑ ‑ ‑ by saying that there is, of course, in the Supreme Court in the second action a statement of claim.  There are no further pleadings defining the issues and the first respondent has issues with the statement of claim should the matter go back.  So I just make that correction.

The application is opposed, your Honour, having regard to a number of delays which we say are significant delays and are not explained in a manner which would justify reinstatement and particularly they are the delays in filing the special leave application itself - it was 48 days out of time – and then the delay between the application being deemed to have been abandoned, and the applicants having been informed of that fact, and then the application to reinstate it which was a delay of 66 days.  So all up a delay of 114 days simply in this Court, so approximately four months. 

Now, we say that quite apart from the delay being substantial and not being sufficiently explained, there is prejudice to the first respondent.  The submissions in the affidavit refer to the bankruptcy proceedings, and your Honour will observe that the proceedings on that petition will lapse on 5 June 2010.

HER HONOUR:   I noted that.  There is no reason to think that the application could not be dealt with in accordance with the provisions of the rules if it proceeds as an application filed by an unrepresented person and is dealt with to finality in accordance with rule 41.10.5, or in the event it is determined to direct that the written case be served on your client, Mr van Hattem, one would expect that the matter could proceed to hearing and be resolved before that date.

MR VAN HATTEM:   The special leave application, your Honour, yes.  If the special leave application were granted, and I will return to that prospect in a moment, in my submission, there is no chance that an appeal could be heard, let alone determined within that timeframe.

HER HONOUR:   That may be so, but if it were granted we are looking at rather different considerations.  Part of your opposition is that it is an unarguably hopeless case.  If one looks at the position, were the Court to grant special leave, that by no means suggests what the ultimate outcome of the appeal would be but it rather undercuts the strength of your submission in terms of the merits for purposes of this application.  Just looking at the position in the event that leave were granted, you say well, an appeal might not be heard and certainly judgment not delivered before the date in June in relation to bankruptcy proceedings.  That is your point, is it?

MR VAN HATTEM:   Yes, your Honour.

HER HONOUR:   Would it be an appropriate exercise of discretion to decline to grant reinstatement in a circumstance where the evidence is that there was an attempt on the very last day within the period limited by the rules to file the documents on that sort of basis, Mr van Hattem?

MR VAN HATTEM:   Well, the attempt, your Honour, involved mailing something by express post on that day.  It had no prospect of reaching the Registry on that day.  But yes, so far as the failure to comply is concerned, whether one fails to comply by a day or a month, in my submission, is not relevant to the issue simply because ‑ ‑ ‑

HER HONOUR:   Is not the length of delay of some significance, amongst the various factors that the Court is to take into account?

MR VAN HATTEM:   Your Honour, I put it this way, so far as filing the case is concerned, it must be done by a particular date.  If it is not done by that date, the matter is deemed to be abandoned, subject to order of the Court.  Now, if it is filed a day after or a week after or a month after, in my submission, it would make no difference in that regard.  The matter is deemed abandoned and it is then a matter when exercising the discretion to have a look at the whole of the circumstances.

HER HONOUR:   Indeed.  But you understand what I am raising with you, Mr van Hattem.

MR VAN HATTEM:   Yes, your Honour. 

HER HONOUR:   So the prejudice is that in the event the Court were to grant special leave to appeal, the bankruptcy proceedings may be prejudiced.

MR VAN HATTEM:   That is an aspect of the prejudice.  Your Honour will have observed that there is a further hearing in the bankruptcy proceeding scheduled for the 20th of this month, so next week, and if this matter is reinstated then that will necessarily be adjourned yet again.  So there is further prejudice to the first respondent in that regard.  The affidavit of Mr Goodman refers to the primary prejudice, in that if the matter ultimately is sent back to the Supreme Court, there will have to be a trial of issues which go back to November 1993 and matters prior to that.

HER HONOUR:   That seemed to me to raise a rather large issue when one starts to consider the prejudice that might flow as the result of a successful appeal.  This is what Mr Goodman turns attention to in the concluding portions of his affidavit.

MR VAN HATTEM:   Yes, your Honour, but when your Honour says “a successful appeal” it is in the context of a matter which – the cause of action arose in November 1993.

HER HONOUR:   I understand that.

MR VAN HATTEM:   The applicants have firstly delayed considerably in bringing the matter on and in which I am saying that the action was commenced in circumstances where they did not have a cause of action, it was vested in the Official Trustee.  There was no attempt to get in the cause of action.  They simply commenced proceedings but did so some five years after the relevant event.  These matters were pointed out to them very promptly, within a month or so of the proceedings being filed, and they simply were not acted on.  It was effectively ignored for a very considerable period of time.

Then there have been considerable delays throughout the matter.  There has never been a coherent case put forward, and the difficulty that the respondent faces is that the allegation against the first respondent is effectively one of negligent advice.  It will involve evidence of people who are no longer associated in any way with the first respondent as to what advice they gave and why they gave it more than 16 years ago.  That is considerable prejudice. 

Now, all of that, in my submission, has to be weighed in the balance of whether this matter should be permitted to continue in circumstances where the prospects of special leave being granted are, in my submission, so remote for the reasons that have been given.

HER HONOUR:   Mr van Hattem, some of the matters that you raise in the event that the proceedings were reinstated and a direction were made under the rules relating to applications for special leave by unrepresented persons for the filing of the summary of argument and the application book and the matter proceeding to oral argument, they would be appropriate matters, I can appreciate, at that time for the Justices dealing with the matter to determine, but they seem to have somewhat less relevance to a consideration of whether, in the circumstances set out in the first applicant’s affidavit, it would be appropriate to reinstate the proceedings so that the applicant would have the opportunity to have the matter considered in accordance with the provisions of the rules.

In that respect, the circumstance that the applicant is unrepresented and the matters that he sets out in his affidavit go some of the way to explaining both the delay in filing the application and the difficulties that he faced thereafter when notified of the operation of the rule and the deemed abandonment of the proceedings.

I have some difficulty seeing that the prejudice that your client is said to face should the matter be reinstated and proceed in accordance with the rules is of an order that would make it appropriate to refuse the applicants the opportunity to have their application considered on its merits.

MR VAN HATTEM:   Yes.  Your Honour, I do not put it any higher than has been put.  So those are the three issues:  the delay, the merits and the prejudice.  May it please the Court.

HER HONOUR:   Thank you, Mr van Hattem.  I do not need to hear from you, Mr Willoughby.

This is a summons claiming an order that the application for special leave filed on 20 April 2009, which was deemed to be abandoned in accordance with rule 41.10.4 of the High Court Rules 2004, be reinstated.

The first applicant appears in person.  There was no appearance by the second applicant, nor the second respondent.  The first applicant relied on his affidavit, which was sworn on 21 July 2009.  Mr van Hattem of senior counsel appears on behalf of the first respondent.  He read the affidavit of David Ronald Goodman, affirmed on 7 October 2009, in support of the first respondent’s opposition to the grant of the relief that is claimed.

The applicants are unrepresented and it follows that their application is to be dealt with in accordance with the provisions of rule 41.10 of the rules. The application for special leave was filed out of time. Subsequently an amended application was filed, relevantly for the purposes of rule 41.10.4, the 28‑day period within which it was necessary for the applicants to file their written case and draft notice of appeal expired on 18 May 2009 and, accordingly, their application was deemed abandoned.

In his affidavit, the applicant states, inter alia, that he had been residing in Queensland.  He details the steps taken in the period following the filing of the initial application for special leave in paragraph 13 of the affidavit, including his endeavours at 2.45 on 18 May 2009 to file by express post and by facsimile to the Perth and Canberra Registries of the Court his written case and various other documents.

Mr Willoughby, I thought that I had seen, either in your summary of argument or in your affidavit, a reference to your ability to prepare the written case within a ‑ ‑ ‑

MR WILLOUGHBY:   Your Honour, I think I did say in there if I had 14 days I could have – as you correctly stated there, I did try to file.  So I have actually got it all – it is ready.  I just need to put it on a different form.

HER HONOUR:   Thank you.  The first applicant informs the Court of his ability to file the requisite documents within 14 days of today’s date.  In opposition to the grant of an order reinstating the application reference is made to the delays that have taken place in this litigation which has indeed a lengthy history.  In this regard I note that there was delay following the deemed abandonment of some 66 days before this application was brought on.

MR WILLOUGHBY:   Excuse me, your Honour, could I just say there that 66 days was two cycles.  What happened at the High Court there, after I put my summons in they thought I had not paid.

HER HONOUR:   I am sorry, Mr Willoughby.

MR WILLOUGHBY:   The 66 days you are referring to there is really two cycles of the Court.  I actually filed in time for the summons the first time but they did not think I had paid the cheque at the Brisbane Registry.  They refused to accept it.  I had to really start again; get the cheque back in the mail; they sent the cheque to Kalgoorlie.  I am sorry, your Honour.  I should not have interrupted you.

HER HONOUR:   Not at all, Mr Willoughby.

MR WILLOUGHBY:   I would hate to be seen as a time waster.

HER HONOUR:   Mr Willoughby, there are some difficulties in the conduct of litigation when a party makes factual assertions from the Bar table.  Your opponent has not had an opportunity to deal with them either.  On the material before me there has been a delay of 66 days.

MR WILLOUGHBY:   There has been, your Honour.

HER HONOUR:   In addition to the delay to which I have referred, Mr van Hattem, in written submissions filed in the proceedings, refers to Mr Chapman’s affidavit and to the asserted prejudice which the first respondent claims it will suffer in the event an order reinstating the application is made.  Not all of the matters identified in Mr Chapman’s affidavit and in the submissions pressed in this respect seem to me to be relevant in considering prejudice occasioned to the first respondent by reason of the delay.

In this respect, I note reference to the lengthy history of the proceedings and the number of statements of claim filed and that, in the event that the appeal were allowed, the second action would resume in the Supreme Court with no prospect of trial in the foreseeable future. 

The matter of prejudice identified in Mr Chapman’s affidavit, upon which principal reliance is placed, is the asserted prejudice to the first respondent’s bankruptcy petitions against the applicants.  The hearing of the petitions has been adjourned on three occasions.  The petitions have been extended to 5 June 2010 and cannot be further extended.  It is not suggested that the application if reinstated and dealt with in accordance with the provisions of the rules either by being determined in the absence of oral argument or subject to a direction by Justices following oral argument will not be determined before 5 June 2010.  The concern becomes live in the event that special leave to appeal is granted, in which case Mr van Hattem notes the unlikelihood that the appeal could be heard and judgment delivered before that date.  So much may be accepted, but I am not persuaded that that consideration makes it appropriate in the circumstances set out in Mr Willoughby’s affidavit to withhold the relief that is claimed.

The delay in relation to the application for special leave to appeal has not been great. It is to be understood in a context that includes the difficulties the applicant has experienced as an unrepresented applicant who understood that it was necessary to file his process through the Perth Registry. He has since been advised that he could file his application through the Brisbane Registry. He is in a position to proceed with the matter in a timely fashion. In my opinion the proper exercise of discretion favours the grant of the relief that is sought. I propose to make orders pursuant to rule 41.10.4 reinstating the proceedings and to direct that the applicants file their written case and other supporting documents. Mr Willoughby, within 14 days is realistic?

MR WILLOUGHBY:   I think so, your Honour.

HER HONOUR:   Very well.

MR WILLOUGHBY:   I think last time – I have actually finished them.  I just put them in on the wrong form.  All the work is done.  I will just make sure the form is right.

HER HONOUR:   Can I just take up with you: in addition to the written case you need to file a draft notice of appeal and all of the documents that are prescribed by rule 41.10.3. Now, I think you have filed a number of those but not the notice of appeal in the Court of Appeal. Do I understand that you have no difficulty if I make orders directing that you file those documents within 14 days of today’s date in complying with that order, Mr Willoughby?

MR WILLOUGHBY:   Your Honour, I will die in a ditch before I do not get the 14 days.

HER HONOUR:   All right.  Mr van Hattem, those are the orders I propose.  Is there anything further you want to put in that respect?

MR VAN HATTEM:   Purely in relation to the form of the order, your Honour.  In my submission it would be appropriate, with respect, rather than directing the applicants to do something simply to order that the special leave application shall be deemed to be abandoned unless the applicants file a written case and draft notice of appeal within 14 days of today’s date.  In that way the applicants are not under compulsion of an order of the Court but it will be a self‑executing order in the sense that if the ‑ ‑ ‑

HER HONOUR:   I understand, Mr van Hattem.

MR VAN HATTEM:   Yes, thank you, your Honour.

HER HONOUR:   Mr Willoughby, I was proposing a third order specifying a deemed abandonment date but it seems to me it is rather difficult for you to complain about that.

MR WILLOUGHBY:   It is, your Honour.  I am quite happy without a guillotine order.  It would be quite ‑ ‑ ‑

HER HONOUR:   Very well. I make the following orders. The applicant’s amended application for special leave to appeal is reinstated pursuant to rule 41.10.4. The applicants are to file their written case, draft notice of appeal and the documents that are prescribed by rule 41.10.3 of the High Court Rules 2004 by 28 October 2009. I direct the deemed abandonment date for the application is 29 October 2009. I think that meets your concern, Mr van Hattem, does it not?

MR VAN HATTEM:   Yes, thank you, your Honour.

HER HONOUR:   Very well.  The Court will adjourn.

AT 3.38 PM THE MATTER WAS ADJOURNED