Australia and New Zealand Banking Group Ltd v Hubner

[1999] FCA 1345

FEDERAL COURT OF AUSTRALIA

Australia & New Zealand Banking Group Ltd v Hubner [1999] FCA 1345

PRACTICE AND PROCEDURE – dismissal of application seeking rescission of orders of single judge and Full Court of Federal Court of Australia, pursuant to s 37(1) Bankruptcy Act 1966 – application of s 37(1) Bankruptcy Act limited to orders made under Bankruptcy Act – no power in Court to rescind orders of Full Court, as orders made pursuant to s 28 Federal Court of Australia Act 1976 – refusal by Court as a matter of discretion to rescind orders of single judge where orders of single judge upheld on appeal by Full Court.

PRACTICE AND PROCEDURE – application for adjournment of proceedings in Federal Court of Australia pending determination of notice of motion filed in High Court of Australia, seeking transfer of part of proceedings in Federal Court of Australia to High Court of Australia, pursuant to s 40(1) Judiciary Act – where s 78B(1) Judiciary Act 1903 the basis for application for stay – whether proceedings in Federal Court involve “a matter arising under the Constitution or involving its interpretation”.

COSTS – whether unappealed interlocutory orders for costs remain valid independently of the correctness of an earlier judgment delivered in default of pleading.

BANKRUPTCY – grant of leave to amend creditor’s petition so as to remove multiple acts of bankruptcy.

Bankruptcy Act 1966 s 37(1)
Judiciary Act 1903 s40(1), s78B(1)

Mahon v Air New Zealand [1984] 1 AC 808 distinguished
Orr v Ford (1989) 167 CLR 316 distinguished

AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED (ACN 005 357 522) v COLIN RICHARD HUBNER & ANOR
QG 7483 OF 1998

COLIN RICHARD HUBNER v AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED (ACN 005 357 522)

QG 143 OF 1998

YVONNE HUBNER v AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED (ACN 005 357 522)

Q 8 OF 1999

SPENDER J
20 SEPTEMBER 1999
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG 7483 OF 1998

BETWEEN:	AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ACN 005 357 522) Applicant
AND:	COLIN RICHARD HUBNER and YVONNE HUBNER Respondent

QG 143 OF 1998

BETWEEN:

AND:

COLIN RICHARD HUBNER
Appellant

THE AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ACN 005 357 522)
Respondent

Q 8 OF 1999

BETWEEN:

AND:

YVONNE HUBNER
Appellant

THE AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED  (ACN 005 357 522)
Respondent

JUDGE:

SPENDER J

DATE OF ORDER:

20 SEPTEMBER 1999

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The application for adjournment of proceedings QG 7483 of 1998 be dismissed with costs, including reserved costs, to be taxed if not agreed, such costs to stand as costs of the petitioning creditor should a sequestration order be made on the petition brought by the petitioning creditor.

2.The notice of motion filed 6 May 1999 in proceedings QG 143 of 1998 be dismissed with costs, including reserved costs, to be taxed if not agreed.

3.The notice of motion filed 6 May 1999 in proceedings Q8 of 1999 be dismissed with costs, including reserved costs, to be taxed if not agreed.

THE COURT GRANTS leave to the petitioning creditor to amend the creditor's petition in these proceedings in terms of the document "Amended Creditor's Petition" received as Exhibit 4 in these proceedings.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG 7483 OF 1998

BETWEEN:	AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ACN 005 357 522) Applicant
AND:	COLIN RICHARD HUBNER and YVONNE HUBNER Respondent

QG 143 OF 1998

BETWEEN:

AND:

COLIN RICHARD HUBNER
Appellant

THE AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ACN 005 357 522)
Respondent

Q 8 OF 1999

BETWEEN:

AND:

YVONNE HUBNER
Appellant

THE AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ACN 005 357 522)
Respondent

JUDGE:

SPENDER J

DATE OF ORDER:

20 SEPTEMBER 1999

WHERE MADE:

BRISBANE

REASONS FOR JUDGMENT

1. I am presently concerned with an application for adjournment of a creditor's petition that has been presented by the Australia and New Zealand Banking Group Limited ('ANZ Bank') against Colin Richard Hubner and Yvonne Hubner.  Those proceedings are QG 7483 of 1998.

2. Associated with the question of adjournment are motions filed in proceedings QG 143 of 1998 and Q8 of 1999, which proceedings are related to QG 7483 of 1998.

3. This matter was last before me on 8 September 1999.

4. A notice of motion was filed on 6 May 1999 in proceedings QG 143 of 1998, and sought orders:

   "1.      That the Orders of the Federal Court of Appeal be rescinded;

   2.      That the Orders of Justice Dowsett, the subject of the Appeal be rescinded;

   3.      That the Bankruptcy notices be dismissed.

   4.     Costs."

   A notice of motion filed on 6 May 1999 in proceedings Q 8 of 1999, sought similar orders.

5. In addition, there were other motions, one filed on 21 December 1998 in proceedings QG 7483 of 1998, seeking "a[n] order transferring the proceedings for the sequestration of the Estate of Colin Richard Hubner to Sydney…", and "a[n] order staying the proceedings upon the Creditors Petition issued 26th November 1998 until appeals against the orders of Dowsett J delivered and made final on the 7th December 1998 are heard and all avenues of appeal against those orders are exhausted." This motion also sought "…all matters of disputed fact to be determined by a jury".  A motion was filed on 21 December 1998 in proceedings QG 7483 of 1998, seeking identical relief in relation to the estate of Yvonne Hubner.

6. There were two further motions, one on behalf of Colin Richard Hubner and the other on behalf of Yvonne Hubner, filed on 1 February 1999 in proceedings QG 7483 of 1998 seeking orders:

   "1.For a jury trial of all matters of fact in the matter NO QG 7483 OF 1998.

   2.That my rights as a Queenslander that were not extinguished at Federation be upheld.

   3.That the venue of hearing be changed..."

7. A further motion filed on 23 February 1999 sought an order that proceedings QG 7483 of 1998 be adjourned:

   "...until such time as Action No 81 of 1998, remitted to the Supreme Court of Queensland, Cairns District Registry by Justice Beaumont is tried and disposed of."

   A motion in identical terms was filed on 8 February 1999 in proceedings QG 143 of 1998.

8. As it turns out, any application for transfer of the proceedings to Sydney is no longer being pursued.  For reasons which appear in the course of discussions in the proceedings before me on 8 September, I dismissed the motion in QG 143 of 1998, which bears the date 27 April 1999 but bears filing date of 6 May 1999, which sought orders that I should rescind the orders made by the Full Court of the Federal Court on appeal and the orders made by Dowsett J, who declined to set aside the six bankruptcy notices which are referred to in the present creditor's petition.

9. That relief was sought in reliance on s 37(1) of the Bankruptcy Act 1966 which provides:

   "Subject to subsection (2), the Court may rescind, vary or discharge an order made by it under this Act or may suspend the operation of such an order."

10. In my opinion, the position is that the power given by s 37(1) to the Federal Court to rescind orders is limited to orders made by the Federal Court under the Bankruptcy Act. There is no power given by s 37 to rescind orders made by the Full Court of the Federal Court of Australia under s 28 of the Federal Court of Australia Act 1976, the appeal provisions of that Act.

11. In short, the orders made by the Full Court of the Federal Court are orders made under the Federal Court of Australia Act and are not orders made under the Bankruptcy Act, and it follows that there is no power in me under s 37 of the Bankruptcy Act to rescind the orders made by the Full Court of the Federal Court on appeal.  I dismissed the motions seeking rescission of earlier orders on 8 September 1999.  The question of the costs of those motions in those respects remains unresolved.  I will hear counsel, but my view is that the respondent upon that motion should have its costs of it.

12. My decision not to rescind the orders of Dowsett J refusing to set aside the six bankruptcy notices is not based on an absence of power, but rather, is a question of discretion.  Those orders were the subject of an unsuccessful appeal to the Full Court of the Federal Court, and in those circumstances it seems to me that, even if there were jurisdiction, it would be quite erroneous to exercise any power to set them aside.

13. In the course of discussions with Mr Fitzgibbon of counsel, who appeared for Mr and Mrs Hubner on 8 September and also today, it became clear that after the resolution of the matter of the power of this Court to rescind orders made by the Full Court of the Federal Court, what was left came down to a consideration of the consequences of a document which was filed on 7 September 1999 in the Brisbane Registry of the High Court, being a motion to remove part of the petition proceedings QG 7483 of 1998 into the High Court, as well as other considerations relevant to the question of adjournment of the petition.

14. It is necessary to have regard to the detailed background of these proceedings.

15. On 9 April 1997, the ANZ Bank issued a specially indorsed writ out of the Supreme Court of Queensland.  The claim indorsed was for recovery of possession of land by the ANZ Bank as mortgagee.  On 30 April 1997, Mr and Mrs Hubner entered conditional appearances.  The ANZ Bank filed an application for summary judgment which came before Byrne J on 30 May 1997.  His Honour dismissed the summons, there being no jurisdiction to hear such an application without the entry of an unconditional appearance, and set aside the conditional appearance.

16. On 30 May 1997, the applicants entered an appearance unconditionally.  Order 25 r 7 of the Rules of the Supreme Court required them to deliver a defence within ten days of the time limited for appearance.  They failed to do so.  On 19 June 1997, the ANZ Bank sought and obtained from a Registrar judgment in default of delivery of defence pursuant to O 31 r 7.  Thereafter, Mr and Mrs Hubner sought to set aside the default judgment.  That application, which was made on the footing that the judgment was regular, necessitated the applicants demonstrating they had a defence on the merits.

17. On 15 September 1997, Byrne J, who heard the application, dismissed it with costs, saying:

    "Upon the evidence as it now stands, there does not seem to be a defence on the merits."

18. The mortgage had been granted by Mr and Mrs Hubner to support guarantees given by them to secure advances made by the ANZ Bank to companies controlled by Mr and Mrs Hubner or by Mr Hubner. 

19. The application, as I say, was dismissed by Byrne J in the Supreme Court of Queensland on 15 September 1997, with costs.  Those costs are the subject of one of the bankruptcy notices against Mr and Mrs Hubner, which they had sought to set aside in the applications before Dowsett J.  The amount of the debt claimed is $8907.

20. On 27 April 1998, Jones J, in the Supreme Court of Queensland, heard a further application by the applicants to set aside the judgment, this time on the basis that it had been irregularly entered.  It was contended before his Honour by the applicants that the judgment was irregular for two reasons: first, that the certificate relied on by the ANZ Bank to obtain judgment to the effect that the action was not one to which O 6 r 11B of the Rules of the Supreme Court applied was false because, so the applicants contended, the action was one to which O 6 r 11B applied.  Secondly, that an affidavit also relied on by the ANZ Bank to obtain judgment, which deposed that no defence had been delivered, was also false.  Jones J found against the applicants on both of these matters, and dismissed the application, with costs. 

21. On 7 May 1999 the Court of Appeal of the Supreme Court of Queensland dismissed the applicants' appeal against the order of Jones J.

22. The application on 16 October 1997 by Mr and Mrs Hubner in the Supreme Court of Queensland for a stay of execution of the writ of possession, pending determination of proceedings in the Federal Court, was dismissed, with costs, and a bankruptcy notice concerning this order, where the costs were taxed in the amount of $7956.15, was the subject of two of the six applications by the Hubners to set aside bankruptcy notices.

23. On 27 November 1997, a further application was made by Mr and Mrs Hubner to restrain the bank from dealing with the land, pending the hearing of a proposed application to the High Court.  On 10 December 1997 this application was also dismissed, with costs, and a bankruptcy notice concerning those costs, which were taxed at $5123.76, was the subject of two further applications to set aside.

24. Joint bankruptcy notices were issued against both Mr and Mrs Hubner on 4 June 1998, in connection with each of the three costs orders, against which there had been no appeal.  They were served on Mr Hubner on 5 June 1998, and on Mrs Hubner on 11 June 1998.  The applications to set them aside were filed on 30 June 1998.  It was contended by Mr and Mrs Hubner that the notices were vexatious, malicious, and an abuse of process.  On 15 July 1998 the bank gave notice of intention to oppose the Hubners' applications.  Mr and Mrs Hubner sought discovery in connection with each of those applications. 

25. The six applications to set aside the bankruptcy notices were listed before Dowsett J for hearing in November 1998.  The hearing took place over two days, on 9 and 10 November 1998.  On conclusion of the hearing on 10 November 1998, Dowsett J dismissed Mr Hubner's application.  On 11 November 1998 a notice of appeal was filed by Mr Hubner against the decision of Dowsett J.  On 7 December 1998 Dowsett J also dismissed Mrs Hubner's applications and published his reasons in respect of both applications.  Mrs Hubner filed a notice of appeal on 14 January 1999.

26. In relation to the applications to set aside the bankruptcy notice, Dowsett J considered that there would be no point in setting aside the notices after expiry of the time for compliance, in the absence of a power to extend time.  He pointed out that once time has expired, the bankruptcy notice is spent, because the act of bankruptcy has been committed, and is available for use by all creditors for the purpose of presenting a petition.

27. Dowsett J held Mr Hubner's applications to be incompetent because they were made outside the prescribed time.  His Honour noted that no attempt had been made to set aside the relevant costs orders which provided the basis for the bankruptcy notices, although Mr and Mrs Hubner had, at the time of the hearing before Dowsett J, appealed against the refusal to set aside the substantive judgment (being the judgment by the Registrar in default of pleading) on the grounds of irregularity. 

28. In accordance with Full Court authority, Dowsett J pointed out in his reasons that the orders for costs are orders of a superior Court of record, and as such they operate unless there is an appeal.  Because there had been no appeal against the costs orders, Dowsett J found they could not be set aside.  In the course of his Honour's reasons of 7 December, his Honour said:

    "As I have said, no attempt has been made to set aside the relevant costs orders, although the Hubners have appealed against the refusal to set aside the substantive judgment on the ground of irregularity.  Counsel for the Hubners asserts that if the appeal is successful, then the presently relevant costs orders will also be nullified.  This submission implies that this is a basis for setting aside the bankruptcy notices or perhaps, for an extension of time pursuant to section 41(6A)(a).  The submission is, in any event, incorrect.  The orders for costs are orders of a superior court of record and must stand unless set aside on appeal.  There is no appeal against those orders and therefore they cannot be set aside.  If any authority for this proposition is needed, it is to be found in the reasons of the Full Court delivered by Burchett J in Sol Theo v The Official Trustee in Bankruptcy & Ors, (Unreported QG182/96 and QG216/96 - judgment delivered 28 April 1997) at p 7 where his Honour said:

    'Mr Theo appears to think the success of his appeal requires any interlocutory order against him in respect of costs to be set aside.  That is simply not so, and nothing has been put before us to suggest error in the original exercise of discretion.  It was open to Kiefel J to make, in her discretion, interlocutory orders for costs against any party, and the ultimate success or failure of any party could not be said necessarily to affect any such interlocutory orders that had been made.  Indeed, quite frequently a party who is ultimately successful remains bound to pay costs, even substantial costs, under earlier interlocutory orders."

29. On 14 April 1999 the Full Court, which consisted of Cooper, Kiefel and Tamberlin JJ was not satisfied that any error had been shown in the reasons of Dowsett J.  The Full Court considered his Honour's reasoning was correct.  The appeals in respect of each of the applications made by the Hubners were dismissed, with costs.

30. The present creditors petition was filed against Mr and Mrs Hubner by the ANZ Bank on 26 November 1998, that is to say, prior to delivery of the reasons for judgment of Dowsett J on 7 December 1998.

31. Mr and Mrs Hubner each filed a notice of intention to oppose the petition, and affidavits. One of those documents, Exhibit FCB3 to the affidavit of Mr Hubner dated 16 December 1998, was headed: "NOTICE OF A CONSTITUTIONAL MATTER UNDER SECTION 78B JUDICIARY ACT 1903".

32. Part of the description of that notice included the following:

    "2.Do Sections 79 and 118 of the Australian Constitution Act guarantee the basic civil rights of all Queenslanders, and if so were the framers of the Constitution aware at the time they were drafting the Australian Constitution Act, that a jury trial was as of right in all contested matters in Queensland?

    3.Does section 118 of the Australian Constitution limit the Commissions and powers of all Federal Court Judges, to obey the Laws of the State of the State of Queensland, notwithstanding a discretion purportedly granted by the Federal Parliament in Section 30(3) of the Bankruptcy Act 1966 and its amendments?.

    4.Does the Australian Constitution therefore bind the Federal Court Judiciary to grant to Queenslanders, as of right, jury trial in a contested matter under the Bankruptcy Act?

    5.Does Section 79 of the Australian Constitution prevent and preclude, delegation by a Judge of the Federal Court of Australia to a Registar (sic) of that Court, not holding a Judicial Commission, in a contested matter of sequestration pursuant to Section 31 of the Bankruptcy Act 1966 (Cth) and its amendments?"

33. Mr Fitzgibbon informs me that notices of that constitutional matter were sent, but that no response from any attorney was received. 

34. The position thus reached, in my opinion, is this:  Dowsett J concluded that the interlocutory costs orders made by Byrne J and twice by Jones J were orders which had not been the subject of any appeal, and which were quite independent in their effect from any question of the power to enter, or correctness of the entry of, judgment by the Registrar in default of pleading.  That conclusion underpins his refusal to set aside the six bankruptcy notices, although, in addition, in Mr Hubner's case his applications were out of time and were held by his Honour to be incompetent for that reason.

35. The reasoning of Dowsett J was approved without dissent by the Full Court in the appeals from his Honour's decisions.

36. It is the correctness of the conclusion that the unappealed interlocutory costs orders are independent of the correctness of the judgment in default of pleading, which underpins Mr Fitzgibbon's application for an adjournment of the hearing of the petition.  He makes reference to two cases: Mahon v Air New Zealand [1984] 1 AC 808, and Orr v Ford (1988-89) 167 CLR 316. However, neither of those cases touches on the question of whether the allowing of an appeal from a substantive judgment, and accompanying costs order, causes any interlocutory costs orders associated with that particular matter to be put in jeopardy.

1. In Mahon, a Royal Commissioner inquiring into the Mount Erebus air crash made a decision that certain members of the management of Air New Zealand were guilty of the crime of conspiracy to commit perjury, and he made a costs order based upon this finding.  It was subsequently held by the Court of Appeal and the Privy Council that the finding of the Commissioner was made in excess of jurisdiction, by reason of the decision having been reached in breach of the rule of natural justice.  It was therefore held that the costs order should be set aside. No question of the validity of collateral orders for interlocutory costs was in issue in that case.

2. In Orr the High Court allowed an appeal, with costs, from a judgment and order of the Full Court of the Supreme Court.  In lieu of the orders that the Full Court had made, the High Court ordered that the appeal be allowed and that the judgment and order of the Supreme Court at first instance be set aside in order that certain declarations be made, and ordered that the respondent pay the costs of the proceedings at first instance.  This case also does not concern the question of any interlocutory costs order, but simply is an example of a situation where an appeal against the primary judgment, and against the orders of the Full Court dismissing an appeal from that judgment, is allowed with consequential effect on the costs orders that had been made in each of those instances.

3. The final basis on which it is said that this Court ought to adjourn the hearing of the creditor's petition is that a document headed "Notice of Motion", bearing the file notation "NO B53 of 1999", was filed in the Brisbane Registry of the High Court on 7 September, the day before the various matters were listed to be heard by me.  That document says, in part:

   "TAKE NOTICE that the Full Court of the High Court of Australia will be moved by the Applicants or Counsel on behalf of the Applicants at Date to be fixed…or as soon thereafter as Applicants or Counsel for the Applicants may be heard for an order that part of the proceedings No QG 7483 of 1998, The Australia and New Zealand Banking Group Limited V Colin Richard Hubner and Yvonne Hubner pending in the Federal Court, Queensland District Registry, which involves the following submissions be removed to this Honorable Court pursuant to Section 40 of the Judiciary Act 1903 on the grounds pursuant to Section 38(a) matters arising directly under a treaty, Judiciary Act 1903 and that they arise under the Constitution or involve its interpretation between conflicts arising between legislation enacted under the Constitution and the terms of same.  Such legislation forming part of this Notice being but not limited to:

   (a)Human Rights and Equal Opportunity Act;

   (b)International Covenant on Civil and Political Rights;

   (c)Federal Court of Australia Act

   And accordingly the entirety of the cause constituted thereby be forthwith removed into the High Court pursuant to Section 40 of the Judicuary (sic) Act 1903..

4. Under the heading "THE NATURE OF THE MATTER", the following statements are included:

   "…

   2.A Constitutional question on whether a rule of a state court can subvert a valid Federal law enacted in compliance to an International Treaty.

   3.Whether costs orders obtained in defence of a judgment gained outside jurisdiction, in abuse of a persons (sic) civil right, can found a bankruptcy proceedings in an attempt to subvert litigation and the International Treaty incorporated into Federal domestic law."

5. The document refers to the application for special leave to appeal from the judgment of the Court of Appeal of the Supreme Court of Queensland:

   "…that upheld the argument that a rule of court empowered a registrar to make a judicial decision, involves matters arising under the Judiciary Act 1903 under Section 38 (a) matters arising directly under an (sic) Treaty."

   The document continues:

   "The Applicants inform the Court the questions raised in our argument for Leave involve the following Constitutional, Civil Rights and Treaty matters:

   1.The Human Rights and Equal Opportunity Commission Act 1986 and the International Covenant on Civil and Political Rights was enacted into law by the Federal Parliament of the Commonwealth of Australia.

   2.The International Covenant on Civil and Political Rights, is attached as Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986.

   3.The Acts Interpretation Act 1901 (Cth) Section 13(2) states: "Every schedule to an Act shall be deemed to form part thereof."

   4.The Acts Interpretation Act 1954 (Qld) Section 14(4) states: "A schedule or appendix of an Act is part of the Act."

   5.If (1), (2), (3) and (4) are lawful enactments, is the International Covenant on Civil and Political Rights binding on the State of Queensland?

   6.If the answer to (5) is NO, why is the International Covenant on Civil and Political Rights not binding on the state (sic) of Queensland?"

6. Section 40 of the Judiciary Act 1903 does not require the Federal Court to abstain from hearing a matter simply because a motion seeking removal has been filed in the Brisbane Registry of the High Court. Section 40(1) provides:

   "Any cause or part of a cause arising under the Constitution or involving its interpretation that is at any time pending in a federal court other than the High Court or in a court of a State or Territory may, at any stage of the proceedings before final judgment, be removed into the High Court under an order of the High Court, which may, upon application of a party for sufficient cause shown, be made on such terms as the Court thinks fit, and shall be made as of course upon application by or on behalf of the Attorney-General of the Commonwealth, the Attorney-General of a State, the Attorney-General of the Australian Capital Territory or the Attorney-General of the Northern Territory."

7. Section 40(1) is directed to the power of the High Court and does not itself deal directly with any right or obligation of a court other than the High Court, where there has been an application for removal made by a party to proceedings before that court. In this case, there has been no order made, or even hearing date set, in relation to the application. Nonetheless, it would be appropriate for a court other than the High Court to have regard to an application made for removal by a party and, in particular, to consider whether in truth there is any arguable case that any cause or part of a cause is one which arises under the Constitution or involves its interpretation.

8. It is also necessary to have regard to s 78B of the Judiciary Act, because subsection 1 of that section commences with words similar to those which appear in the first part of s 40(1). Section 78B(1) provides:

   "Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court."

9. It is therefore necessary to consider whether the creditor's petition in this case arguably "involves a matter arising under the Constitution or involving its interpretation". I note further in this regard that Mr Hubner deposes that, "On the 10th September 1999 a 78B notice in the matter was served on the Queensland Attorney General" and "On the 12th September 1999 78B notices were posted to the Attorney Generals (sic) of the States and Territories."  Mr Hubner also deposes that, as of 20 September 1999, no replies have been received from any Attorneys-General.

10. Notwithstanding the extensive material which accompanies the document styled Notice of Motion, filed on 7 September in the Brisbane Registry of the High Court, in my view those documents do not show any arguable case of a matter pending in a Federal Court which involves a matter arising out of the Constitution or involving its interpretation. The contentions depend fundamentally on an acceptance that costs orders made in interlocutory proceedings associated with a substantive matter stand or fall with whether the substantive judgment stands or falls.

11. I am not saying that the matters in the Notice of Motion are unarguable, although I have to say I have serious reservations about whether that might be the case.  What I am saying is that a consideration of those matters is not relevant to the question of whether there is any basis on which the interlocutory costs orders, which found the petition, can be challenged.

12. Even if it were the case that Mr and Mrs Hubner's arguments in relation to the powers of the Registrar to enter the original judgment and to make the costs order that he did in default of pleading were to be accepted, and the substantive order and costs order were to be set aside, the position is that the costs orders made by Byrne J and twice by Jones J would be unaffected.  It therefore follows that no consideration of the arguments by Mr and Mrs Hubner concerning the validity of the order made by the Registrar in default of pleading can affect the issues which arise for determination in proceedings QG 7483 of 1998, which proceedings do not depend in any way on the original order of the Registrar, but which are founded on bankruptcy notices based, in turn, on failure to comply with interlocutory costs orders.

13. It is for those reasons that I decline to adjourn the hearing of the petition.  I make the following orders:

    1.  The application for adjournment of proceedings QG 7483 of 1998 be dismissed with costs, including reserved costs, to be taxed if not agreed, such costs to stand as costs of the petitioning creditor should a sequestration order be made on the petition brought by the petitioning creditor.

    2.  The notice of motion filed 6 May 1999 in proceedings QG 143 of 1998 be dismissed with costs, including reserved costs, to be taxed if not agreed.

    3.  The notice of motion filed 6 May 1999 in proceedings Q 8 of 1999 be dismissed with costs, including reserved costs, to be taxed if not agreed.

14. No prejudice is suffered by either Mr or Mrs Hubner by permitting the petitioning creditor to amend the petition by ceasing to rely on, in the male respondent's case, what is said to be two further acts of bankruptcy, and in the female respondent's case, two further acts of bankruptcy.  In those circumstances I give leave to the petitioning creditor to amend the petition so that it complies with the form of the document headed Amended Creditor's Petition which I will receive as Exhibit 4 in these proceedings.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated:             27 September 1999

Counsel for the Applicant in QG 7483 of 1998 and the Respondent in QG 143 of 1998 and Q 8 of 1999:	Mr P E Hack
Solicitor for the Applicant in QG 7483 of 1998 and the Respondent in QG 143 of 1998 and Q 8 of 1999:	Minter Ellison
Counsel for the Respondents in QG 7483 of 1998 and the Appellants in QG 143 of 1998 and Q 8 of 1999:	Mr D C Fitzgibbon
Dates of Hearing:	8, 20 September 1999
Date of Judgment:	20 September 1999