Bar-Mordecai v Hillston

[2005] HCATrans 158

[2005] HCATrans 158

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S11 of 2005

B e t w e e n -

MICHAEL BAR-MORDECAI

Applicant

and

ALLAN HILLSTON

Respondent

Application for special leave to appeal

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 16 MARCH 2005, AT 9.38 AM

Copyright in the High Court of Australia

MR M. BAR-MORDECAI appeared in person.

MR J.B. WHITTLE, SC:   If it please the Court, I appear with my learned friend, MR B.J. BURKE, for the respondent.  (instructed by Shaw McDonald)

HIS HONOUR:   Mr Bar-Mordecai, you have a summons filed on 9 March.

MR BAR-MORDECAI:   Yes, your Honour.

HIS HONOUR:   Let me just make sure I understand it.  Your special leave application was filed on 11 January, I think.

MR BAR-MORDECAI:   That is right, but an amended application was filed on 27 January with leave of the Registrar, and I seek to rely on the amended application for special leave to appeal.

HIS HONOUR:   Can I just draw this to your attention.  It is something that can be cleared up but I think you do need to clear it up.  At that stage the Court of Appeal had made what is now its final orders, is that right?  It made its final orders I think on ‑ ‑ ‑

MR BAR-MORDECAI:   On 4 March 2005.

HIS HONOUR:   Yes, that is right.  What you will be appealing against in your application for special leave is these final orders?

MR BAR-MORDECAI:   That is correct, your Honour.

HIS HONOUR:   So I think you will need, subject to what Mr Whittle says, to further amend your application for special leave.

MR BAR-MORDECAI:   Yes, your Honour.  The matter of the application for special leave you will find in my affidavit in support.

HIS HONOUR:   I have looked at that, yes.  All I am trying to alert you to at the moment is that you need to catch up with what has happened.

MR BAR-MORDECAI:   But in the affidavit there is a copy of my objections to the final orders with new orders sought by me on the basis of the evidence.

MR WHITTLE:   Perhaps I might assist, your Honour, by saying we would have no difficulty with your Honour proceeding to deal with this application on the basis Mr Bar-Mordecai had amended to refer to the orders that were made by the Court of Appeal on 4 March.

HIS HONOUR:   All right, thank you.  There is in force then a holding stay of 21 days from 4 March.  That is right, is it not, gentlemen?

MR BAR-MORDECAI:   Yes.  Justice Giles previously in the appeal jurisdiction granted a stay of the execution of the orders until the final hearing – until the orders of the appeal were entered.  I seek to rely on that precedent that an order has been granted already for a stay for a further stay in the High Court jurisdiction.  In the High Court jurisdiction, I am not sure that your Honour has had time to read the amended application and the written case.

HIS HONOUR:   Yes.

MR BAR-MORDECAI:   If your Honour has read those, then ‑ ‑ ‑

HIS HONOUR:   I can tell you, gentlemen, provisionally what I propose to do, subject to what Mr Whittle says.  It seems to me, Mr Whittle, that bound up in all of this is preservation of the subject matter, having regard to Burgundy Royale and the other authorities one is familiar with.  Looking at the summons, at the moment I would be minded to make an order extending the stay granted by the Court of Appeal until the disposition of the special leave application in this Court or earlier final order and I would not be minded to make order 2 which is sought, which requires access to the very funds that are in dispute.

MR WHITTLE:   Certainly not, your Honour.

MR BAR-MORDECAI:   Your Honour, on the basis that the funds in dispute are really my money ‑ ‑ ‑

HIS HONOUR:   I know that, but that has to be decided.

MR BAR-MORDECAI:   Your Honour, it was already decided that the house was my funds, so the $700,000 is my funds.  The respondent ‑ ‑ ‑

HIS HONOUR:   The question is whether it gets set‑off, you see.

MR BAR-MORDECAI:   Yes, but the set‑off, your Honour, was a matter where the Court of Appeal perpetrated bias by allowing the set‑off ‑ ‑ ‑

HIS HONOUR:   That may be right but I cannot decide that at this stage.  Do you understand that?

MR BAR-MORDECAI:   Yes, your Honour.

HIS HONOUR:   You may ultimately be right but I cannot decide that.  It seems to me I have to try and get this leave application ready for disposition as soon as possible in proper form.

MR WHITTLE:   Yes, your Honour.

HIS HONOUR:   Do you want to dissuade me from that course, Mr Whittle?

MR WHITTLE:   Your Honour having fairly given me an indication of which way your Honour thinks, that may be somewhat difficult.  Can I just say this.  Your Honour will have seen of course that already there have been two special leave applications in relation to this appeal that was before the Court of Appeal that were filed last year, and indeed the year before, by the applicant.  Your Honour would have seen that both of those were dismissed in recent days by the Court constituted by Justice McHugh and Justice Heydon.  I do not know whether your Honour has seen the reasons given by Justice McHugh for that dismissal.  As your Honour would have seen, this case involves the affairs of an estate which has now been 11 years, if I can put it this way, tangled up in the courts. 

Secondly, your Honour, furthermore, the affairs concerning the estate and the examination of the material relating to the evidence concerning the estate goes back a further 12 years, or possibly even a little earlier, to about 1982 before the deceased’s husband died when Mr Bar‑Mordecai - Dr Bar‑Mordecai as he then was – began to look after the deceased’s husband.  Any appeal to this Court or any application that were granted for special leave would have to involve this Court in making a detailed examination of the whole of the evidence relating to those matters, which we would submit is a matter which would be very unlikely to attract the jurisdiction of this Court to grant special leave.

HIS HONOUR:   You may be right but I have to ensure that the subject matter is there if the Court decides otherwise, Mr Whittle.

MR WHITTLE:   Yes.  If your Honour takes the view that the paramount object is to preserve the subject matter, then obviously enough your Honour will understand my client is under a duty of course if he received the subject matter to continue to administer the estate.  We do not resile from that, nor should we.  We would be derelict in our duty if we took any other view.

HIS HONOUR:   That necessitates the stay, I think.

MR WHITTLE:   Yes, may it please the Court, if your Honour takes that view.  Might I perhaps make this application, your Honour.  In view of the chronological sequence that I have outlined to your Honour, we would strongly suggest to the Court that this matter should not just take its place in the queue as relating to special leave but should be dealt with as soon as possible.

HIS HONOUR:   Yes.

MR BAR-MORDECAI:   Your Honour, might I make an application?

HIS HONOUR:   Yes.

MR BAR-MORDECAI:   That an application to the High Court for special leave be a further application of a 10‑page application so as not to disturb the previous one, because it is complete in its entirety and it would be very distressing to try and change that or edit that.  So that if we were ‑ ‑ ‑

HIS HONOUR:   I think all you will need to do – this is my provisional view – would be to amend your application for special leave, otherwise your documentation could probably stand, subject to anything you wanted to supplement, but I am not suggesting you withdraw what you have done.

MR BAR-MORDECAI:   I see, yes, your Honour.  Does that mean there will be a limit of 10 pages, for example?

HIS HONOUR:   Whatever the rules say.

MR BAR-MORDECAI:   I do not know what the rules say.  That is the whole thing.

MR WHITTLE:   I think they do, your Honour.

HIS HONOUR:   I think they do.

MR BAR-MORDECAI:   Ten pages, is it?

HIS HONOUR:   Yes.

MR BAR-MORDECAI:   Thank you very much.

HIS HONOUR:   It tends to crystallise the ‑ ‑ ‑

MR BAR-MORDECAI:   Does that mean that the stay is granted?

HIS HONOUR:   Yes.  I am just about to draft some orders and then I will read them to you.

MR BAR-MORDECAI:   And does that mean that it will then go to the High Court, or does it go again before you for ‑ ‑ ‑

HIS HONOUR:   No, it means the special leave application will go ahead.

MR BAR-MORDECAI:   To the High Court in Canberra?

HIS HONOUR:   No, it will go ahead in the ordinary processes of the Court.

MR BAR-MORDECAI:   Thank you.  And no expedition?

HIS HONOUR:   I will indicate that expedition if necessary should be given, but I think the queue is pretty short at the moment.  The Deputy Registrar is hearing what I am saying.  This is what I would propose, gentlemen: 

1.        Grant leave to amend further the application for special leave to indicate that leave is sought in respect of the final orders made by the New South Wales Court of Appeal on 4 March 2005 and entered on 9 March 2005;

2.        Order that the orders of the New South Wales Court of Appeal identified in order 1 be stayed pending the disposition of the special leave application or earlier further order of this Court;

3.        Otherwise the summons filed on 9 March 2005 be dismissed;

4.        Costs of the summons be costs of the special leave application.

MR WHITTLE:   May it please the Court.  I have no comment on that.

HIS HONOUR:   Do you understand that, or should I read it again?

MR BAR-MORDECAI:   I do ‑ ‑ ‑

HIS HONOUR:   I will read it again, gentlemen.

1.        Grant leave to amend further the application for special leave to indicate that leave is sought in respect of the final orders made by the New South Wales Court of Appeal on 4 March 2005 and entered on 9 March 2005;

2         Order that the orders of the New South Wales Court of Appeal identified in order 1 be stayed pending the disposition of the special leave application or earlier further order of this Court;

3.        Otherwise the summons filed 9 March 2005 be dismissed;

4         Costs of the summons be costs of the special leave application.

MR WHITTLE:   There was only one further matter that my learned instructing solicitor reminded me of, your Honour.  It might be perhaps appropriate for your Honour to set a time for the amended application to be filed and served.

HIS HONOUR:   Yes.  Fourteen days?

MR WHITTLE:   May it please the Court.

HIS HONOUR:   I will revise 1 so that it reads:

1.        Grant leave to amend further and within 14 days –

I think that is enough time –

the application for special leave to indicate that leave is sought in respect –

et cetera.

MR BAR-MORDECAI:   Could the Court also make those orders available for me in writing?  Is that possible?

HIS HONOUR:   There will be a transcript.  I think Mr Whittle will take out the order anyway, I would imagine.

MR WHITTLE:   Yes, we probably would, your Honour.

HIS HONOUR:   So that there will be a sealed order, just so that it is quite clear, gentlemen.  That can be done pretty quickly.  Very well, I make those orders as indicated.

MR BAR-MORDECAI:   Thank you, your Honour.

AT 9.56 AM THE MATTER WAS CONCLUDED