Yap v Hartley Poynton Ltd

[1992] HCATrans 316

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P22 of 1992

B e t w e e n -

YAP CHONG YEE

Applicant

and

HARTLEY POYNTON LTD

Respondent

Application for special leave

to appeal

MASON CJ

DEANE J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 16 OCTOBER 1992, AT 12.57 PM

Copyright in the High Court of Australia

Yap 1 16/10/92

MR S.T. KRISHNAR:  May it please Your Honours, I appear for

the applicant.

MR P.G. McGOWAN:  May it please the Court, I appear on

behalf of the respondent.	(instructed by Philips
Fox)

MASON CJ:  Mr Krishnar.

MR KRISHNAR:  Thank you. Your Honours, I was ..... by Mr Yap

last evening at, what, 3.30. I have not been able

to fully acquaint myself with the matter. However,

I would like to inform Your Honours that Mr Yap has

been a lawyer for several years in Malaysia and has
been in the conduct of this matter right from the

inception.

In view of these circumstances, I ask leave of

this Court to incorporate the contents of Mr Yap's

supporting affidavit for this appeal. I have read

through his affidavit and observed that he has

provided sufficient detail, arguments in the form

of submissions in the various issues. I therefore

ask this Court to treat the contents of his

affidavit in like manner. In respect of action

2968, I will now make my submission for the

setting aside of the judgment of the learned Master

Bredmeyer, affirmed.by the Full Court, on the

grounds that the purported leave for the extension

of time given by the learned Master Bredmeyer does

not constitute an order giving leave for an

extension of time within the meaning of Order 16.

Therefore, Your Honours, the issue is whether

the unsolicited granting of leave by

Master Bredmeyer to the respondent for an extension

of time for them to file the application for an

order to dismiss the applicant's civil action

No 2968 of 1990 was made within the limits of his

discretion under Order 16 of the Rules of the

Supreme Court.

Your Honours, the facts relevant to this

particular issue are the following: respondent

entered an appearance on 2 January 1991; they filed

the Order 16 application on 16 January 1991. That

makes it four days outside of the 10 day period as required under Order 16. Respondent did not apply for leave for an extension of time to file the

Order 16 application at any time at all.
Therefore, the applicant was not given an opportunity to object any questions raised by such

application.

Master Bredmeyer dealt with the respondent's

Order 16 application and - - -

Yap 16/10/92

MASON CJ: Have you got a copy of the rules, Mr Krishnar,

for the Court?

MR KRISHNAR:	Yes, Your Honour.
MASON CJ:	We do not have copies of the rules.
MR KRISHNAR:	Yes, I have.
MASON CJ:	Now, it is Order 16; which rule?
MR KRISHNAR:	It is rule 1, Your Honours, which specifically

states that a 10 day period is required, failing

which the leave of the court must be obtained

before any proceedings may be taken under Order 16.

It may be Order 16 rule 1 or 2, Your Honours.

MASON CJ: It does not seem to be either. What do you say

it provides?

MR KRISHNAR:  The section categorically says that leave of

the court is required where the 10 day period has

elapsed.

DEANE J: Where, the what?

MR KRISHNAR:	Where the 10 day period has elapsed.
MASON CJ:	Mr McGowan, can you tell us?
MR McGOWAN:	The period, as I understand it, is 21 days.

That is what Order 16 says.

MASON CJ: Order 16.2?

MR McGOWAN: Order 16.1.

MASON CJ: Perhaps the rules have been amended. I cannot -

it does not seem to have any application, the copy

that we have here.

Mr Krishnar, can you tell us what this rule is

supposed to provide? The book does not seem

to -

MR KRISHNAR:	If I may have recourse to that.
MASON CJ:	Now, Justice Toohey has handed me a copy of the

rules which have an Order 16 which is more up to

date and it does have in it a provision providing

that:

Any defendant to an action may within 21 days

after appearance or at any later time by leave

of the Court -

now, that is the part you rely on.

Yap 16/10/92

MR KRISHNAR:  Yes. The order which I have says, Order 16.1

says:

Any defendant to an action may within 10 days

after appearance or at any later time by leave

of the Court, apply to the Court for summary

judgment - - -

TOOHEY J:  The up-to-date copy of the rules, Mr Krishnar,

suggest the period is 21 days. But are you saying

it was outside 21 days or outside 10 days but not

outside 21 days?

MR KRISHNAR:  Your Honours, I am not aware of the rule

having changed in the recent times but from what I
have before me, Order 16.1 says it is within

10 days, and Your Honours will appreciate the fact

that I was briefed last night and I had to rush

down to the Court to get myself registered to

appear before here.

MASON CJ: Yes, we understand your difficulties. Can you

throw any light on this? What is the current form

of the rule, Mr McGowan?

MR McGOWAN:  The current form of the rule - the only

material change that has been effected,

Your Honour, was to change the number of days. The

reference to the leave of the court has always been

there. The number of days was effected by a change

on 5 June this year. The reference in

Justice Seaman's Civil Procedure incorporates the

up-to-date rule. But my learned friend's reference

to the 10 days was the period as it applied at the

time at which the application was made.

MASON CJ:  I see. So, it was the relevant provision?

MR McGOWAN:  Yes, Your Honour. \

MASON CJ: Ten days?
MR McGOWAN:	Yes.

MASON CJ: Yes. Well, we have established that,

Mr Krishnar.

MR KRISHNAR:  Yes, I thank my learned friend. So, on the

assumption that the 10 day period is what is

required, on the day of the hearing, I will proceed

from there, Your Honours. From the above facts,

that in context of the decision in Burton v

President of Shire of Bairnsdale, (1908) the issue before this Court is whether the unsolicited leave granted by Master Bredmeyer constitute as leave

given to the respondent for an extension of time

within the meaning of Order 16.

Yap 4 16/10/92

I believe that the applicant did tender some

cases before this Court. They will be filed with

the application, but I do not have a list before

me.

TOOHEY J:  Mr Krishnar, I take you not to be saying that

there was no extension of time because the Master

appears to have granted an extension of time?

MR KRISHNAR:  But no application was made.

TOOHEY J: Well, that is the next step. But there was an

extension of time, was there not?

MR KRISHNAR: There was an extension.

TOOHEY J: That appears from the top of page 39:

I grant leave to the defendant to bring this

application slightly out of time.

MR KRISHNAR: Well, to grant leave, Your Honours, affidavit

with a chamber summons is the proceeding which they

should have taken. It is not for Master Bredmeyer

to grant leave without an application.

I quote Mr Justice O'Connor at page 91 of the

said decision:

As the application to

Mr Justice a'Beckett was not made within ten

days after appearance and there was no order

under Order XIV(A) of the Supreme Court Rules

giving leave to make it later, it is quite

clear that the judgment for the defendants

directed to be entered by the Supreme Court

cannot stand.

The right to apply under Order 16 is stipulated to

be within 10 days of appearance. This right ceases

after 10 days and any application - - -

DEANE J: Was anything said about this in the Full Court? I

mean, we are hearing an application for leave to

appeal from the Full Court.

MR KRISHNAR:  Yes. The Full Court, in fact, affirmed the

decision of Master Bredmeyer.

DEANE J: But I cannot see anything about this in the

notice of appeal to the Full Court.

MR KRISHNAR: In fact, Your Honour, I spotted this matter

late last evening and I found that this was a

better ground for him to go ahead and at least get

leave to defend one matter.

Yap 5 16/10/92

DEANE J: What, this was not raised in the Full Court?

MR KRISHNAR:  This wa~ obviously raised in the Full Court

and the Full Court affirmed what was held by

Master Bredmeyer.

DEANE J: What, it was submitted to the Full Court that

leave should not have been granted because it was not asked for, or an extension of time should not

have been granted because it was not sought?

MR KRISHNAR: Well, from what I know of the transcripts of

Master Bredmeyer, he said although the respondents

were late by four days, he proceeded to give leave

without taking into account the built-in

requirement in Order 16. The Full Court did not

deliberate much on this matter either.

DEANE J: But did anybody ask them to? Did anybody say,

"The Master granted leave without being asked and

therefore there is something wrong"?

MR KRISHNAR: Well, it is in the - - -

MR McGOWAN:  Your Honour, I am sorry, I may be able to help

my learned friend. I appeared as counsel in the

Full Court. The answer to Your Honour's question

is no, it was not raised in any of the material

before the Full Court, nor was it raised in any

way, shape or form in the course of argument.

MASON CJ: What was ground 1 on page 47 directed to?

Page 51 probably is the correct page in relation to

2968.

MR McGOWAN: Sorry, Your Honour, my material is provided by

the applicant and the numbering system -

TOOHEY J: It is page 51 of the application book.

DEANE J: You mean you did not get one of our application

books?

MR McGOWAN:  No.

DEANE J: What it says is:

The Learned Master erred in law and in fact in

allowing the Chamber Summons of the Respondent

under Order 16 of The Rules Of The Supreme

Court 1971 and that he wrongfully entered

summary Judgement for the Respondent.

I suppose that covered anything that was raised on

the merits or what have you.

Yap	6
MR McGOWAN:	Yes. Well, certainly, in the reasons for

decision, the Full Court endeavours to summarize

and ..... to what was argued before the court and

that, in the end, was not a matter which was

raised.

Yes, I am indebted to Your Honour. I do

withdraw what I have just said. I realize now that

it was there but certainly it was not argued and

the Chief Justice was at pains to ascertain exactly

from Mr Yap what his contention was, and having

ascertained, in essence, what his contention was,

the appeal proceeded upon that basis, and I think

that the Full Court's reasons for decision reflect

that. But I can see that that was there in the

notice of appeal but, in the end, it was not

formally addressed either by Mr Yap's submissions

or by the Full Court coming back to the question

of - - -

DEANE J: Well, it does not say anything about granting

something that was not asked for.

MR McGOWAN: That is right.

MASON CJ: Well now, Mr Krishner, it seems that this point

was not argued before the Full Court. Now, if this

point was not argued before the Full Court, it is

scarcely a point that we can take on.

MR KRISHNER:  Yes, I appreciate that, Your Honours, but in

the light of the circumstances where the applicant

had to defend this matter entirely on his own

without aid of counsel may have prejudiced his

claim. It is an enormous amount of money involved,

Your Honours, well over $1 million, I believe. In

the light of his circumstances, I seek

Your Honours' indulgence in granting leave to try

this matter as there was evidence. There has been

some evidence which was forthcoming in the

affidavits of the directors of the respondent

company and what is the central issue before the	Court is whether the provisions contained in the
Securities Act 1980 has been complied with.

It is a matter of great public interest and I

urge Your Honours to grant leave in light of those

circumstances.

MASON CJ: Yes, thank you, Mr Krishner. Mr Krishner, that

is all you wish to put in support of the

application?

MR KRISHNER: At this stage, yes, Your Honours. Perhaps I

may rebut when my learned friend makes his

submissions.

Yap 16/10/92

MASON CJ: Yes. Well, we will adjourn now and we will

resume at 2 o'clock and in the meantime we will
read the written materials that have been lodged by

your client.

MR KRISHNER:  Much obliged, Your Honour.

AT 1.16 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.02 PM:

MASON CJ:  The Court need not trouble you, Mr McGowan.

The principal point argued in support of this

application for special leave to appeal is that the

Master was in error in granting an extension of

time under 0.16 r.1 of the Rules of the Supreme

Court 1971 (W.A.) otherwise than on an application

made by the applicant. However, it appears that

that point was not argued in the Full Court of the

Supreme Court and, in those circumstances, it

cannot ground an application for special leave to

appeal to this Court.

In other respects, the matters put forward on

behalf of the applicant do not warrant the grant of

special leave to appeal.	The application is·
therefore refused.

MR McGOWAN:  I therefore move for an order that the

application be dismissed and an order for costs,

Your Honour.

MASON CJ: You cannot oppose an order for costs, can you,

Mr Krishner? The application for special leave to

appeal is refused with costs.

AT 2.04 PM THE MATTER WAS ADJOURNED SINE DIE

Yap 8 16/10/92