Zoltaszek v Downer EDI Engineering Pty Limited

[2011] HCATrans 351

[2011] HCATrans 351

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S260 of 2011

B e t w e e n -

ZENON ZOLTASZEK

Applicant

and

DOWNER EDI ENGINEERING PTY LIMITED ACN 057 593 503

Respondent

Application for reinstatement

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 14 DECEMBER 2011, AT 9.33 AM

Copyright in the High Court of Australia

MR Z. ZOLTASZEK appeared in person.

MS K.T. NOMCHONG:   May it please your Honour, I appear for the respondent.  (instructed by FCB Workplace Lawyers)

HIS HONOUR:   Mr Zoltaszek, you are seeking a reinstatement of your application for special leave.  I take it you have seen, have you, the written submissions which Ms Nomchong has filed in answer to your application.  Is that right?

MR ZOLTASZEK:   Yes, agree.

HIS HONOUR:   It may be of assistance, Mr Zoltaszek, if I hear first from Ms Nomchong.

MR ZOLTASZEK:   Okay.

HIS HONOUR:   Thank you.  Ms Nomchong, thank you for your written submissions.  I have had the benefit of reading those and I understand what you say and the power of what you say.  May I simply put this question to you.  If I were to accede to your proposed disposition of this matter and refuse the extension of time, let it be assumed that there would be an appeal against that refusal, that appeal would then focus on whether there was any arguable case rather than upon the merits of the application.

MS NOMCHONG:   Yes, your Honour.

HIS HONOUR:   In those circumstances, would it be more efficient and a more efficient use of the Court’s time and resources if the extension were to be granted, that is, the reinstatement were to be allowed, the application for special leave were then to go forward for consideration possibly on the papers and the costs of the application for extension were to be treated as costs in the application?

MS NOMCHONG:   Yes, your Honour, I agree with that.

HIS HONOUR:   If that were to be done, there would then be effectively one pass at the issues rather than at least the potential for two?

MS NOMCHONG:   Yes, your Honour.

HIS HONOUR:   Yes.  If then, in light of the exchange we have just had, I were to order that the application be reinstated, were to fix next Friday as the time by which the outstanding papers were to be filed and to order that the costs of today’s application be costs in the application for special leave, would you wish to be heard further on the matter?

MS NOMCHONG:   Your Honour, only to ask, what would be the effect if Mr Zoltaszek did not in fact file his written case and draft notice of appeal?  One of the issues that we had today was that we actually have not seen either document.

HIS HONOUR:   No.  That would be a bridge which, I suspect, we would have to cross, but I suspect that the bridge that we would be crossing would be a further deemed abandonment and, yes, there must come a time, I am sure, Ms Nomchong, but I am reluctant to cross bridges where I would hope that the occasion even for cutting down the timber has not yet arrived.

MS NOMCHONG:   Yes, your Honour.

HIS HONOUR:   Perhaps then if I could speak with Mr Zoltaszek.

MS NOMCHONG:   Yes, your Honour.

HIS HONOUR:   Mr Zoltaszek, when can you file your written case?

MR ZOLTASZEK:   Well, your Honour, yes, I can lodge in about two weeks time.

HIS HONOUR:   You would want as much – that is taking us up to beyond Christmas and the like, Mr Zoltaszek.  Is there any reason why we could not see this document no later than 4.00 pm on Monday next?

MR ZOLTASZEK:   Does that mean next Monday?

HIS HONOUR:   Next Monday.

MR ZOLTASZEK:   Next Monday after Saturday, Sunday, yes.

HIS HONOUR:   It gives you a weekend, Mr Zoltaszek, is what I am anxious to give you, but we must get to an end.

MR ZOLTASZEK:   Yes, that is okay, your Honour.  Yes, I can do it.

HIS HONOUR:   Can I make this point to you, Mr Zoltaszek.  This will mean you will have had one indulgence or favour.  It is always very, very difficult to ask for a second indulgence or favour.  4.00 pm on Monday is the time by which your written case should be filed together with, I think, your draft notice of appeal.  Is that right?

MR ZOLTASZEK:   Yes, your Honour, that is okay.

HIS HONOUR:   Yes.  I will reinstate the application for special leave.  I fix Monday, 19 December 2011 at 4.00 pm as the time by which the applicant for special leave is to file his written case and draft notice of appeal.  The costs of this application will be costs in the application for special leave.

MR ZOLTASZEK:   Your Honour.

HIS HONOUR:   Thank you, Mr Zoltaszek.  Is there anything that you need to raise with me, Ms Nomchong?

MS NOMCHONG:   No, your Honour.

HIS HONOUR:   Yes.  I am indebted to you for your assistance.  Thank you.

AT 9.41 AM THE MATTER WAS ADJOURNED