Hearing Court of Appeal (before Gleeson and McColl JJ)



McColl J: This is not a concurrent hearing. If leave is granted, the appeal will be heard before 3 judges

McColl J: Do you seek to rely on your affidavits? This is a technical question

Brett: Yes we want them read by the court


Extension of time:

  • Length & Reason for delay:
    • Evidence in 2/4 affidavit shows negotiations did not cease on 13/12 à the A-G publicly stated the costs order was not going to be enforced
    • 23/1 the CSO replied that they acknowledged the instructions were NOT withdrawn
      • Annexure B to 2/3 affidavit shows the A-G was not going to enforce it à the Court and the CSO were misinformed
  • CSO argues the withdrawal of instructions was not a central issue. Any reading of the Johnson J judgment shows this is not the case.
    • McColl J: CSO says that the judgment (page 30) says that Brett had a chance to respond to the issue but didn’t
      • Brett responds: On Page 1 of the same document, Brett explained why the solicitor was not present. Also, the judgment also shows that the opposing solicitor acknowledged that Brett disagreed with the ‘withdrawal’
    • The withdrawal was the basis for being distinguished from O’grady. O’Grady is supposed to protect tutors/primary carers. Andrew Dikha’s certificate was the only thing that distinguished those two cases.
      • First, there was no evidence about the other two sets of solicitors (when Johnson J speaks of the ‘three’ sets of lawyers on p 29 judgment). Johnson J should have asked for evidence about the other two sets if he wanted to rely on them as well.
      • Second, the opposition acknowledged that Brett disagreed with the ‘withdrawal’ of instructions, but Johnson J did not explain what his decision was à this is an error of law.
        • Authorities (e.g. King v House) explain appellate courts should fix this
        • We attempted to subpoena Dikha & Bodisco but we were not entitled to do so. We asked the CSO to do it instead but they refused
        • O’Grady should protect us from costs order like these. Nash, Dikha and Bodisco all worked with us but they abandoned us. We carried on the case ourselves because we had a merit advice from Turnbull that indicated we had a strong case.

McColl J: You have a few more minutes to go over anything you feel you need to draw our attention to.


  • The 25/6 amended argument puts our case into context. It talks about the human rights and international obligations. It gives context about the proven bias of the HMRT, which is why we couldn’t go back à the tribunal said that we never asked for changes but they were proven wrong by the transcript. That bias was before Johson J and it is before this court. The new legislation provides for an appeal for ‘any other reason’, meaning the HMRT is to be supervised by the Supreme Court



  • Intro i.e. case in regards to 26/11/2010 costs order. Notice of intention to appeal was not filed within time à first filed on 30/1/2013.
  • The UCPR gives a right to extend time but all 4 factors (length of delay, reason for delay, fairly arguable case, prejudice suffered by respondent) from Tomko weigh against the appellant
  • #1 Length:
    • Two years 1 month à gross and excessive
  • #2 Explanation:
    • Appellant argues he was:
      • Unrepresented: but ignorance of a right of appeal doesn’t suffice (Barret)
      • Negotiations with A-G: the interview with the Greens is not admissible. Therefore the only evidence provided is the 30/11/2010 offer of compromise.
        • There were no negotiations. Paragraph 3 of Sato affidavit shows there were no compelling reasons for the delay
  • #3 Fairly arguable case:
    • Tomko 65 para 4 per Hodgson J: the case must be more than fairly arguable. There must be a manifest error, a failure to give consideration etc
    • The Johnson J judgment page 30 shows Brett was given the opportunity to deal with any issues. Johnson J found the instructions were withdrawn
    • The withdrawal was not a material consideration anyway
    • On the issue of no evidence raised today: Johnson J does not need to do more than the explanation in para 90 of his judgment
    • On the merit advice: Relying on a legal or merit advice does not displace the usual costs order that costs should follow the event (Latontis at 567).
      • McColl J: The usual order would have justified a costs order against Mr Dezfouli but not Collins. Dezfouli was the party.
      • Munro: There are other factors relied on by the Respondent.
      • McColl J: there is a distinction between a party and a tutor
      • Munro: Johnson J at paras 87-90 states the facts of Re Adams were ‘remote’ (para 89). It is submitted Johnson J didn’t fail to consider the public interest.
      • McColl J: It is not apparent that Johnson J deals with the public interest in the way Collins says.
      • Munro: There is implied acknowledgement. I accept it is not expressly acknowledged.
  • #4 Prejudice:
    • Actual prejudice suffered by Respondent
    • The UCPR fix time to give certainty to the party
    • Respondent took steps to enforce costs order (assessment, court attendance, notice of motion etc) à $16K
    • Appellant should not be given more time
    • $32k [sic à not sure what this was in relation to]
    • UCPR 101(2)(r) requires leave for appealing quantum of damages also
      • The appellant must show an error of principle, manifest error etc. Johnson J made no such error
  • On the distinction between a tutor and a party: The respondent relies on ‘the principle’ from  [this was difficult to hear, but she said something about s 98; Johnson J judgment and  Rockham)
    • McColl: Presumably Johnson J relies on s 98 for the costs order. Is there a rule about tutor costs orders?
    • Munro: Johnson J refers to UCPR 42.1
    • McColl: Yes but is there an express rule somewhere about tutor cost orders?
    • Munro: The Respondent accepts there is no express permission in the legislation or cases
    • McColl: I think you will find there is an abundance of case law on the matter
    • Munro: I accept that but no rule in the legislation



  • Regarding Respondent’s argument that there was no justification for the length of delay. Annexure D [sic, corrected to be Annexure E] of 6/6 affidavit shows a public statement from the A-G
    • McColl: It is Shoebrdige who makes that statement
    • Brett: There is public acknowledgement that the costs order is being considered
  • 2/4 Annexure B: shows ongoing negotiations regarding the withdrawl of the order. We approached the CSO at that point à shows ongoing negotiations. We came with open hands

McColl: Court will reserve its decision

x/y = day/month. This is how the documents lodged with the court were referred to in the hearing. It wasn’t always clear exactly what document was being referred to other than by reference to the date it was lodged (i.e. whether it was the summons, an affidavit etc)

CSO = Crown Solicitor’s Office


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