Emerson Lewis Lawyers recently acted for financier Marketlend Pty Ltd (Marketlend) in successfully resisting a special leave application made to the High Court of Australia (High Court Application).
In the decision of Govindasamy v Marketlend Pty Ltd ACN 602 720 856 [2023] HCASL 149, their Honours Justice Gordon and Justice Jagot held that the applicant, Mr Govindasamy, had identified no question of public importance such to warrant a grant of special leave and the interests of the administration of justice did not support a grant of special leave, noting that an appeal to the High Court would enjoy no prospects of success.
The procedural history leading up to the special leave application is a lengthy one, with proceedings being commenced by Marketlend in the District Court of New South Wales in November 2021 for breach of a deed of settlement and release (Settlement Deed) by Mr Govindasamy (District Court Proceeding). In November 2022, his Honour Justice Montgomery found in favour of Marketlend and awarded judgment in full, plus costs.
In December 2022, Mr Govindasamy commenced an appeal in the New South Wales Court of Appeal on what would become two grounds (the second of which was added during the course of the hearing of the appeal). First, Mr Govindasamy contended that he was not afforded procedural fairness by the Court below, and second, Mr Govindasamy attempted to argue that the Court below did not consider the alleged unconscionable conduct of Marketlend, such allegation being founded on the basis that Mr Govindasamy considered he was at a special disadvantage when entered into the Settlement Deed.
In May 2023, their Honours Justice Adamson and Acting Justices Simpson and Basten dismissed the appeal on the bases that, first, there was no denial of procedural fairness because Mr Govindasamy had no entitlement to have irrelevant evidence admitted, and second, the Court ought not uphold a ground of appeal which, had it been raised at first instance, could have led to evidence being adduced by the respondent (being the ground of unconscionable conduct).
In June 2023, Mr Govindasamy commenced the High Court Application on the basis that the Court of Appeal erred in law in finding that Mr Govindasamy did not suffer procedural unfairness in the District Court Proceeding. Mr Govindasamy also wished to raise a new ground of economic duress. Counsel for Marketlend successfully argued that Mr Govindasamy did not, at first instance, or to the Court of Appeal, raise any alleged relevance of evidence he wished to adduce, nor did he challenge Justice Montgomery’s finding as to his economic duress defence or rejection thereof.
For the reasons above, their Honours Justice Gordon and Justice Jagot dismissed the High Court Application, with costs.
What is required to be granted special leave to appeal to the High Court of Australia?
Appealing to the High Court is a two-step process. You first need to apply for, and be granted, special leave to appeal. The right to be heard on an appeal from State Supreme Courts to the High Court is discretionary.
The High Court determines special leave applications pursuant to section 35A of the Judiciary Act 1903 (Cth), which provides that in considering whether to grant special leave, the High Court ‘may have regard to any matters that it considers relevant’, but directs that the High Court ‘shall have regard’ to the public importance of the question of law and whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court.
In essence, the party seeking leave must show a special reason why leave to appeal should be granted relevant to the public interest rather than the personal interest of the party.
Process of commencing a special leave application
The applicant must file a Form 23 – application for special leave to appeal, which sets out, amongst other things, the proposed grounds of appeal, orders sought, and a brief statement of how questions warranting the grant of special leave arise.
A special leave application must be filed within 28 days of the judgment of the lower court, noting that, if an applicant is out of time, any special leave application must be accompanied by an order than compliance with the 28-day time limit be dispensed with.
Pursuant to rule 41.01.4 of the High Court Rules 2004 (Cth), the special leave application must be lodged in conjunction with a copy of the sealed order or judgment of the court below, a copy of the reasons for the judgment below, if the judgment below determines an appeal or reviews a decision, a copy of the primary sealed order or judgment or decision, the reasons (if any) of the primary court or decision maker that were before the court below, and the notice of appeal or application for leave to appeal to the court below.
Upon the application of special leave being accepted for filing, the applicant must serve the application on each respondent within 7 days of it being filed, as well as lodge a copy of the application with the court below within the same time frame. The applicant must file an affidavit of service within 7 days of the application being served.
Pursuant to rules 41.05 and 41.06) of the High Court Rules 2004 (Cth), a respondent has an opportunity to file a response within 21 days after service of the application, following which, the applicant has seven days to file a reply.
In most cases of applications for special leave, the High Court Justices will determine the application on the basis of all the written material put before them. In the rare event that the High Court Justices cannot determine the application on the papers, there will be a referral to a bench of three High Court Justices for oral argument.
Conclusion
Undoubtedly, special leave applications that are successfully granted by the High Court are crucial to the development of substantive law in Australia. However, given the finite resources of the High Court, of the hundreds of applications for special leave made annually, the High Court will generally only hear approximately 10% on an appellate basis.
The case of Govindasamy v Marketlend Pty Ltd ACN 602 720 856 [2023] HCASL 149 serves as a timely reminder of the paramount factors the High Court considers when determine whether to grant special leave, being whether questions of public importance arise, and whether the grant of special leave is congruous with the administration of justice.
For those considering whether to commence a special leave application to the High Court, consideration must be given to whether any factors arise that point to a matter of public importance. Without this, prospects of success in being granted special leave are unfavourable.