WPD v JCW

[2011] HCATrans 175

[2011] HCATrans 175

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M143 of 2010

B e t w e e n -

WPD

Applicant

and

JCW

Respondent

Application for special leave to appeal

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 16 JUNE 2011, AT 9.30 AM

Copyright in the High Court of Australia

WPD appeared in person.

MS D.R. WEINER:   If the Court pleases, I appear for the respondent.  (instructed by Perry Weston Lawyers)

HIS HONOUR:   Now, [Mr Applicant], you are moving on a summons of 17 May.  You have filed an affidavit sworn on 13 May and you rely on that.  Is that right?

WPD:   Yes, your Honour.

HIS HONOUR:   Yes.  Perhaps, Ms Weiner, if I hear from you first.  Is there any objection to my receiving the affidavit?

MS WEINER:   No, your Honour.

HIS HONOUR:   Yes.  Now, why should I not make the orders which are sought, Ms Weiner?

MS WEINER:   Your Honour, my instructions are as follows.  The matters deposed to in [the applicant’s] affidavit seem somewhat inherently unlikely and I say this to your Honour for these reasons.  That is, your Honour, that on 10 March my instructors received from the Court a letter dated 10 March indicating what the parties were required to do and it would appear from that letter, your Honour, that that was not a pro forma letter exactly but a letter that was sent to each of the parties indicating that the documents had been filed, the response had been filed and the applicant was thereafter required to file his response on the blank day of blank – well, not in fact the blank day of blank, but 7 April.  Given that there were solicitors on the record to which my instructors sent their response on 16 March, although [the applicant] says he never got that, we sent it to them, those matters, your Honour, those dates therefore make what is deposed to in his affidavit inherently unlikely.

HIS HONOUR:   Be it so ‑ ‑ ‑

MS WEINER:   Be it, yes.  That is all I can say, your Honour.

HIS HONOUR:   ‑ ‑ ‑ why not let us get to the heart of this.  Either there is a leave point or there is not and ‑ ‑ ‑

MS WEINER:   Yes, I cannot argue with that.

HIS HONOUR:   ‑ ‑ ‑ why should that not go to a Full Court?

MS WEINER:   Well, we say the application is completely without merit, but that is for another day, of course.

HIS HONOUR:   I understand that is your side’s attitude to it, but, as I say, the bottom line is there has been a default, there should not have been, he now seeks to remedy it.  This is, shall we say, a fairly bitterly contested litigation is I think a fair description of it.

MS WEINER:   Somewhat understated, your Honour.

HIS HONOUR:   Yes.  Why not let us get to the core of it.

MS WEINER:   Yes, I cannot argue with that, your Honour.

HIS HONOUR:   Yes, very well.  Now, Ms Weiner, if I were to make the costs of this application costs in the application itself, so that if you were to succeed in resisting leave you would get your costs, but if [the applicant] were to succeed in getting leave, then he would get his costs.

MS WEINER:   Yes.  I think the situation is, your Honour, that neither party has sought costs from the other all the way along given each party’s impecuniosity.

HIS HONOUR:   Given the circumstances.  Yes, very well.

WPD:   Your Honour, I have got one more – sorry.

HIS HONOUR:   Yes.

WPD:   If I say something?  Yes.  There was some problem, as Ms Weiner says, there was a letter sent in March, but I have not received anything because it was sent to the wrong address.

HIS HONOUR:   [Mr Applicant], you are pushing at an open door.  You push at an open door, it sometimes goes bang in the face.  You may take the orders of the kind that you need to reinstate the application.  How long, [Mr Applicant] before you can complete the necessary steps?

WPD:   I can do it in seven days, your Honour.

HIS HONOUR:   Yes.  If I allow you three weeks, that should then be ample?

WPD:   Yes, more than enough, your Honour.  Thanks very much.

HIS HONOUR:   You may have three weeks, but may I be so bold as to point out to you that one act of forgiveness with an extension of three weeks would make any further requirement for acts of forgiveness rather more difficult to come by.

WPD:   I understand, your Honour.

HIS HONOUR:   Yes, very well.  You may take orders in the form that you seek, namely, that the application for special leave be reinstated.  I will fix the period as three weeks for taking the next necessary step.  There will be no order made as to the costs of this application.

MS WEINER:   If your Honour pleases.

HIS HONOUR:   Very well.  Thank you.

AT 9.35 AM THE MATTER WAS CONCLUDED