Arnoya Holdings Pty Ltd & Ors v Metway Leasing Ltd

[2000] HCATrans 17

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S72 of 1999

B e t w e e n -

ARNOYA HOLDINGS PTY LTD

First Applicant

KEITH MALCOLM CAMPBELL

Second Applicant

LOIS AUDREY CAMPBELL

Third Applicant

and

METWAY LEASING LIMITED

Respondent

Application for special leave to appeal

GAUDRON J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 FEBRUARY 2000, AT 1.59 PM

Copyright in the High Court of Australia

MR J.L. GLISSAN, QC:   If the Court please, I appear with my learned friend, MR P.A. BAMBAGIOTTI, for the second and third applicants.  (instructed by Taylor Kelso)  The first applicant, I am informed in writing, has been dissolved as a company and the former liquidator wishes to take no part in the proceedings.

GAUDRON J:   Yes, I hold a certificate, not quite to that effect, but it says that the liquidator does not wish to pursue the proceedings and does not wish to appear at the hearing of the matter.

MR M.G. SKINNER:   May it please the Court, I appear for the respondent, Metway Leasing Limited.  (instructed by Lincoln Smith & Company)

GAUDRON J:   Yes, Mr Glissan.  I should say we received an affidavit ‑ ‑ ‑

MR GLISSAN:   Your Honour, before we come to that, might I just deal with another procedural matter which may be rather more than that.  There are two matters that have arisen which raise questions as to whether the Court should this afternoon deal with this special leave application at all.  I need to raise each of those with your Honours.  The first of them is one which proceeds from the respondent’s side of the Bar table and that is a contention that, based on the Court of Appeal judgment and the fact that each of the two remaining applicants either was or remains bankrupt, I have no standing to be here and cannot agitate the substance of the appeal.  Your Honours will be aware from seeing the judgment of Mr Justice Sheller in the Court of Appeal ‑ ‑ ‑

GAUDRON J:   Yes, but there is no challenge to your retainer?

MR GLISSAN:   No, I do not think so, not in that sense.  But, your Honour, that raises the very point that I must now raise with your Honours which leads to me suggesting to the Court that the appropriate course is not to hear the application today, and that is this.  Having been put on notice of that contention we, as your Honours would readily understand, looked at the issue of what the substance of that objection was.  That gives rise to an application that will need to be made by summons to this Court in its original jurisdiction, challenging the constitutional validity of section 60(2), (3) and (4) of the Bankruptcy Act.  The difficulty, your Honours, assuming that we ‑ ‑ ‑

GAUDRON J:   You cannot do it in these proceedings.

MR GLISSAN:   Exactly, I am aware of that, your Honour.  That is why I am raising it now because if the Court were to proceed to hear the special leave application and determine it adversely to us, either on the ground primarily relied on by my learned friend, that is to say that we have no standing because we are bankrupt, and we were subsequently to succeed on the constitutional challenge to section 60, we would be placed in a difficult position.

HAYNE J:   Why?  What would be the difficulty that would then ensue?

MR GLISSAN:   We would then need to make a further application for leave.

HAYNE J:   Yes.

MR GLISSAN:   Your Honour, there seems to be little point in wasting this Court’s time listening to the same application in the same matter twice.

GAUDRON J:   You in effect seek to stand this over on terms that you would file proceedings in the original jurisdiction of this Court within how many days?

MR GLISSAN:   Within whatever period the Court deemed appropriate.  Your Honour, we could do it, I would think, within seven or 14 days.

GAUDRON J:   Fourteen days you could do that?

MR GLISSAN:   Yes, certainly.

GAUDRON J:   We will see what Mr Skinner says about that.

MR SKINNER:   We do not oppose it, your Honour.

GAUDRON J:   That leaves only one thing, what, reserve the costs.

MR GLISSAN:   Reserved, if your Honour would.

GAUDRON J:   Very well.  We will stand this matter over on your undertaking to commence proceedings within the original jurisdiction of this Court within 14 days.  Costs reserved.  Liberty to either party to apply on seven days notice.

In saying that you will commence proceedings within 10 days, that is understood to include prosecuting the proceedings with expedition.

MR GLISSAN:   Yes, your Honour, we would understand that.  There is no possible excuse or reason for any delay in the matter, so far as any party is concerned.

GAUDRON J:   Thank you.

MR GLISSAN:   Your Honour did say 14 days between making the order, rather than 10, I should say.

GAUDRON J:   Fourteen days.  But seven days on either side liberty to apply.

MR GLISSAN:   If your Honours please.

GAUDRON J:   Call the next matter, please.

AT 2.04 PM THE MATTER WAS ADJOURNED