Zippoz Pty Ltd v National Australia Bank Limited

[2013] HCATrans 97

[2013] HCATrans 097

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S87 of 2013

B e t w e e n -

ZIPPOZ PTY LTD

Applicant

and

NATIONAL AUSTRALIA BANK LIMITED

Respondent

Summons

KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 8 MAY 2013, AT 12.58 PM

Copyright in the High Court of Australia

MS R. CAPORALE:   Your Honour, Rosa Caporale on behalf of Zippoz Pty Ltd.  (instructed by the applicant)

HER HONOUR:   Thank you.  You seek leave I think to appear on behalf of the company, Zippoz?

MS R. CAPORALE:   I do.  The directors, Tommaso Caporale and Giuseppe Caporale, are here in the Court today and they have authorised me through a resolution of an affidavit which I provided to the Court to be able to represent them on their behalf.

HER HONOUR:   I think you also say in your material that you are an officer of the company.  Is that right?

MS CAPORALE:   Yes, I represent the company.

MR D.C. PRICE:   May it please the Court, I appear for the respondent.  (instructed by Gadens Lawyers)

HER HONOUR:   I understand Ms Caporale has been given leave to appear for the company on previous occasions in the Supreme Court.  Is any issue taken about her right to appear?

MR PRICE:   Not today.  We do not take that issue, your Honour.

HER HONOUR:   All right then.  I will hear from you, Ms Caporale, in relation to the substantive matter which is effectively an application for an extension of the stay previously granted by the Court of Appeal.

MS CAPORALE:   It is today, your Honour.  Briefly, the matter was heard and a judgment was entered into on 31 August 2012.  Then, subsequently, we made several applications through the Supreme Court for stays and that resulted in an application seeking time – leave to appeal out of time in the Court of Appeal.  That was heard on 18 April 2013.

HER HONOUR:   Now, we do not have reasons for that. 

MS CAPORALE:   No.

HER HONOUR:   I realise the application was dismissed.  So there would have been two issues before the Court of Appeal.  One would have been to consider your explanation for why further time was required and the other, necessarily, would have been the prospects of success on appeal.

MS CAPORALE:   That is right, yes.  We did lodge a draft notice of appeal.  Really, your Honour, today is that probably not, sort of, thinking through it on the day that – we did not think to ask for an extension of the stay to be able to have the written reasons and then be able to appeal if - you know, that was our intention.  So today really - because it expires essentially today, the writ – the sheriff is due in tomorrow morning, we would like to seek the Court to be able to extend that until we receive the written reasons and be able to provide the grounds of appeal for our application.

HER HONOUR:   Well, I am not sure that the reasons are really necessary because on an application for stay that I have to consider it is necessary for me to consider the prospects of success on an application for special leave to appeal.  So essentially, I have to consider the same matter that the Court of Appeal did and that is directed to the decision of the primary judge really.

MS CAPORALE:   Yes, I understand that.  I am just not sure what the reasons would be.  I just wanted to make sure that I had got those before I would be able to put my grounds for reasons for appealing that, your Honour.

HER HONOUR:   Are you in a position to – as I said to you, the question for me is essentially the same as the Court of Appeal itself considered, except that now it is the question of the company’s prospects of obtaining special leave to appeal, and that would require me to consider the primary judge’s decision and whether or not there would be prospects of an appeal on that basis.  Are you in a position to argue that today?

MS CAPORALE:   Really I was under the impression that I had to provide reasons why the Court of Appeal erred in some way, your Honour.  That was my impression of this.

HER HONOUR:   Yes, I see.  What, on the basis that the Court of Appeal might have thought you had good grounds for appeal but did not accept your explanation for the delay?

MS CAPORALE:   Possibly.  I mean, there was a bit of time spent on the time of delay so, like I said, I would not like to pre‑empt what the reasons would be, whether it was just because it was just out of time or whether – like I said, I just would not like to pre‑empt that, your Honour.  I am only really asking for a short stay to be able to get those reasons.  I can apply to the associate or I am not sure what the steps would be down here, but I can inquire in the Court to see if we could speed that up and get those and put a short timeframe ‑ ‑ ‑

HER HONOUR:   Have you made that inquiry?  Have you asked?

MS CAPORALE:   No, your Honour, I mean – like I said, I realised that I had not received it.  Now, I would have expected to have received it but I have not actually received any.  The issue was that no oral reason was given either, so the fact that I am sort of left open at the moment, not to be able to really rely on either an oral reason or a written reason.  But I can undertake to do that.  I mean, I am not sure what timeframe the judges would take, but I can certainly on my end undertake to provide that to all the parties that I have made that application through the Court formally if that is necessary today.

HER HONOUR:   Well, I will hear from Mr Price about this matter.  The question being whether there should be a short stay to permit the reasons to be provided.

MR PRICE:   Your Honour, the applicant appears to be proceeding on the basis that the respondent will be taking possession tomorrow.

HER HONOUR:   That is not the date in your submissions, I see, it is 26 June.

MR PRICE:   Yes, your Honour.  We received a letter from the Sherriff yesterday notifying us that that was the scheduled date for eviction.  In those circumstances, there does not appear to be any reason why the applicant needs a stay, in those circumstances, that being a date approximately some seven weeks from now.

HER HONOUR:   Well, except that she would probably like the security of a stay order, but that also raises the question whether or not the respondent is going to be prejudiced if she is permitted to make an inquiry of the Court of Appeal as to the reasons – as to the availability of the written reasons.

MR PRICE:   I do not suggest that there would be any prejudice to the bank by the applicant making an inquiry.

HER HONOUR:   Yes, obviously be some short delay.  If the written reasons could not be provided relatively shortly, the alternative position is that we then proceed upon the various hypotheses upon which the Court of Appeal could have acted.  That is to say, it could have held - hypothetically it could have held that Zippoz had some prospects of success on appeal but did not accept the explanation it gave of delay, and the alternative is it took the view that there were no prospects, so either way I would have to consider the prospects of success on this appeal – on special leave application here.

MR PRICE:   Indeed, your Honour, and in those circumstances I would fall back to the submission that what the applicant needs to show is some exceptional circumstance which would warrant the grant of special leave and, in my submission, there are no special circumstances, particularly bearing in mind that the decision of the Court of Appeal was one of a discretionary nature; secondly, it was inherently tied to the facts of the case; and third, raises no point of law.  In those circumstances, in my submission, there is no reasonable prospect of the applicants obtaining a grant of special leave, and on that basis the Court would not prepared to grant a stay.

HER HONOUR:   Yes, I will speak further with Ms Caporale.  Ms Caporale, in the absence of written reasons from the Court of Appeal it is possible to proceed upon the basis that, as I have indicated to Mr Price, that there are really only two alternative views that it could have taken.  If it had held that the company had some prospects of success on appeal but did not accept the explanation for delay, then the special leave application would have to deal with the non‑acceptance of the explanation for delay.  Now, that would not often be a special leave point, it is a discretionary consideration.

The alternative would be that the Court of Appeal considered that there were no prospects of success, in which case the special leave application would address them being wrong in that respect.  But it is not ideal, of course, unless there was some urgency in the matter affecting the respondent to proceed on the way of these hypothetical bases when you do not know what is in the reasons.  So I think it would be preferable if at least some time were given to allow you to approach the Court of Appeal and make an inquiry, and not the least because from what you have said today you are not really in a position, or did not expect, to have to argue the hypothetical bases that I have put to you.

What we could do is have the matter – it will not take you long to make an inquiry of the Court of Appeal.  I am wondering if I could have the matter relisted later this afternoon so that we know some sort of timeframe that we are dealing with.  Alternatively, we could put it over until tomorrow.  I suppose it would be better in view of the stay if we could have some indication.  If the Court of Appeal was in a position to give you some indication this afternoon, then we could talk about a realistic timeframe.  Would that involve any difficulty from your point of view, Mr Price?

MR PRICE:   No, your Honour.

HER HONOUR:   I know it is inconvenient to come to and from court, but perhaps if there is no difficulty with another video link, we could set up another video link at 4.00 pm this afternoon?

MR PRICE:   The only difficulty that I envisage, your Honour, is that, insofar as their Honours President Beazley and Justice Basten are otherwise in court today, they may not be in a position to indicate by 4.00 pm as to when the reasons for judgment may be available.

HER HONOUR:   I do not intend any disrespect by applying pressure to the Court of Appeal either, but there is always that difficulty.  It is luncheon adjournment now, in any event, but I suppose relisting it at 4 o’clock does rather assume that Ms Caporale is going to be able to get through and get a response in that time.  That might not be realistic.  Perhaps we could just adjourn the matter generally and if Ms Caporale undertakes to contact the Registry by 4.00 pm this afternoon to advise what steps she has taken and what response she has had.  As I say, I am reluctant to set a time.  Are you suggesting that it might be better if we leave it for tomorrow, Mr Price?

MR PRICE:   Yes, your Honour, or even 4.30 if that was suitable to your Honour.

HER HONOUR:   This afternoon - I could even leave it till 5 o’clock.  All right, why do we not leave it on that basis?  Your concern is that their Honours might not have a proper opportunity to deal with it.  If we left it till tomorrow morning, would you be in a position to give an undertaking not to execute this evening?

MR PRICE:   Certainly, your Honour, there is no intention to execute.

HER HONOUR:   No intention.

MR PRICE:   The eviction is, at this stage, scheduled for 26 June.

HER HONOUR:   In that light, why do I not just adjourn the matter over till tomorrow morning so that the Court of Appeal has a proper opportunity to consider their timeframe and advise Ms Caporale when that might be forthcoming?  Unless there is any difficulty I will adjourn the matter until 9.30 tomorrow morning by video link.  The costs of today will be reserved.
Thank you.

AT 1.13 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 9 MAY 2013