Bride & Anor v HMG Hungerfords

[1999] HCATrans 356

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P20 of 1998

B e t w e e n -

EDWARD JAMES BRIDE and WENDY MARGARET BRIDE

Applicants

and

H M G HUNGERFORDS

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 21 OCTOBER 1999, AT 11.11 AM

Copyright in the High Court of Australia

MR E.J. BRIDE:  If it please the Court, I appear on my own behalf.

McHUGH J:   I take it you are seeking leave to appear on behalf of Mrs Wendy Bride.

MR BRIDE:   That is correct, your Honour.

MS C.H. THOMPSON:  I appear on behalf of the respondent.  (instructed by Freehill Hollingdale Page)

McHUGH J:   Yes, Mr Bride.

MR BRIDE:   Your Honours, you have an application book before you outlining the grounds on which I seek special leave to appeal but in quite simple essence, and rather than going into a prolonged protraction of what it is, all parts of the application before his Honour Justice French and which subsequently went to the Full Court were brought in the wrong capacity by the applicants.  Quite simply, I made the application for a sequestration order to include not only myself and my wife but also the family trust which was the party to the carriage of the action.  The extracted orders were not possible at law to be made as the order sequestrated and these are the orders of Justice French - that his orders, in fact, sequestrated an entity, not the persons, myself and my wife.

McHUGH J:   This point that you are now seeking to raise has never been raised in the Full Court nor was it raised in your printed material.

MR BRIDE:   It came before the Full Court of the Supreme Court just recently, your Honour.

McHUGH J:   That does not matter, Mr Bride.  The point is that you are now asking for the grant of special leave on a point that was not dealt with by the Full Court of the Federal Court and which, as far as I can see, is not dealt with in your own application in this Court.

MR BRIDE:   I understand what you say and I appreciate what you say, but it was something which was raised and if it is outside the areas of this application then I accept that.

McHUGH J:   Yes, thank you, Mr Bride.

MR BRIDE:   The purpose of the application was purely and simply - the purpose of the sequestration order, as it was before the court, was purely and simply to delay Supreme Court actions which had been tentatively set for trial against the mortgagee, and against the mortgagee and others and against the receiver managers, Peat Marwick Mitchell.  Peat Marwick Mitchell had a cross-vesting partnership between the partners of the old firm of KMG Hungerfords and the new party to this action which is Peat Marwick Mitchell.  The purpose of the sequestration order was simply, and for only one reason, to stop the – and this is my submission to the Court – purpose and the conduct of that action going forth and, in fact, it did.

McHUGH J:   I know you argue that but it was found as a fact against you.  In fact, in the current findings of fact against you, really does not raise a special leave point, Mr Bride.

MR BRIDE:   The Full Court of the Supreme Court had looked at that and I am now talking, when I say the Supreme Court, I am talking about in the last three months, the matter by which this application ‑ ‑ ‑

McHUGH J:   I gather from what you have said and I think there is something, at least by inference, in your book that the action has been stayed, has it, or effectively stopped?

MR BRIDE:   The Full Court have lifted the security of costs order on about 6 June this year.  The matter is now set for trial on 9 November of this year and it will run for some six weeks.  The Full Court saw fit to lift the security of costs order.

McHUGH J:   Yes, so the trial is going to proceed.

MR BRIDE:   The trial will proceed.

McHUGH J:   Right.

MR BRIDE:   Upon obtaining these orders, and I believe it was some six days, looking through the documents between the time when Justice French ordered the sequestration order, that there was some action and attempt by using the sequestration order, of myself, my wife, and the trust, as it was extracted, and the orders were made.  It was some six days in which the application for security of costs and at the hearing of the appeal before the Full Court on the matter of security of costs, it was stated by counsel, Mr Vaughan, to the court, that the sequestration order gave the defendants the ability to enliven an application for security of costs.  That is basically what happened.

I think you picked it up, your Honour, I have put to the Court today that it was put to Justice French this was the purpose of it and in his orders and reasons for judgment he made a special mention – no, he never made a special mention, he made a mention of the fact that counsel to him had stated that the purpose of the application was nothing to do with any of the actions which were set for trial and, in fact, stated that if there was a sequestration order made then it would not impede and would not stop the trial.  That was, in fact, incorrect.

McHUGH J:   It has turned out to be correct now as it turns out to be the case.

MR BRIDE:   Yes, thanks for something – I was going to say thank God but I will say “something”.  The action has always been off the rails.  This sequestration order has always been off the rails from when it was first conceived, when it was first brought before the court.  It was brought, as I said, in the wrong name, and I know what you have said to me this is an issue which I have just raised.  I listened to what someone else said to the court earlier and that is part of the reason why I am saying to you now.  It did not seem to me at that stage but that is what it is.  But it clearly was never something that should have proceeded.

Your Honours, if you could bear with me for a moment.  There is also an argument which I have put to the court and I have put to the Full Court of the court, and that is that there is outstanding matters and they are under section 52(2) of the Bankruptcy Act and that is that there were actions afoot, namely the actions in the Supreme Court, which were of greater value – significantly greater value – than the amount of money said to be owed by way of orders for costs.  I am just trying to put it in the right context.  There is a judgment from Justice Carr which was dated 18 March 1997, and it is in relation to Robert Edward Rolland and Robin Mary Rolland, Ex parte Rolland v Bank of Western Australia, and his Honour saw fit to stop the sequestration or not grant a sequestration order in that instance on the basis that the Rollands had actions against the parties and the parties to that were in the Supreme Court.

The Rollands were somewhat different to myself because they have ignored sequestration applications and notices to them until the final bell and then they came to the court and sought relief.  In this instance we had, from the beginning, opposed the sequestration order.  There is another thing which I would like also to bring the Court’s attention and that is that his Honour stated that the affidavit material that I had lodged before the court, and I think it was 13 December ‑ ‑ ‑

McHUGH J:   Yes, he said that they were mere assertions.  That is what your point is, is it not?

MR BRIDE:   That is my point, your Honour.

McHUGH J:   That is your point.  In one sense, that is true and in another sense, I suppose, it is not.  It is your assertion as to what were the facts of the case, however, it was a discretionary judgment and, on one view, the judge was entitled to regard your affidavit as no more than your version of the case.  But it seems to me that the Full Court, arguably – although it referred to that statement – did not adopt it.  They gave another reason for rejecting the relevance of your claim.

MR BRIDE:   That is true, but on that issue, if I can address you on that issue of those assertions.  Clearly, what was said to be assertions was statements of fact as if I had been in that witness box and given evidence to the court.  Registrar Jan gave the defendants, or the applicants, at least three occasions, gave them the opportunity – and I think in one instance almost all of them – to address and reply to the affidavit material.  Their tactic was, rather than address and reply to the affidavit material and the matters deposed there in it, that they saw fit to withdraw or attempt to withdraw, as the petitioning creditor and have themselves replaced with another person literally from the Bar table, which was unsuccessful.

Your Honours, the sequestration order which is in effect at the moment has no real or sensible purpose apart from what it had which was to get a security of costs order.  I put it to the court that it was an improper purpose for the application and in all attempts and all reason, there is no reason why (a) we should have been sequestrated, apart from the fact there is no question that the monies were owed from court costs, and that is not denied, but there is enough reasons for this Court to look and to give us a chance to go behind the judgment on the evidence which was before the court.

McHUGH J:   That was almost an impossibility, Mr Bride.  After a 17-day trial, 4-day appeal, special leave application to this Court, it is almost impossible to think of the Federal Court going behind a judgment.  I must say when I was at the Bar I was in the leading case of Wren v Mahoney in which they went behind a judgment debt that I had obtained on behalf of Mr Mahoney, but they are few and far between ‑ ‑ ‑

MR BRIDE:   Your Honour, they are rarer than hen’s teeth.  I understand that.  I understand and I appreciate what you are saying.  But if the court had not gone and listened to the evidence which came forth in the matter of McIllkenny v The Chief Constable, which is the Irish bombers, those persons, after 17 years incarceration, would still be behind bars.  There cannot be a situation where a person can stand at a Bar of a court and address a court, and make allegations of impropriety and affidavit evidence put to the court with supporting documents to show it, that there has been a gross miscarriage of justice.

I understand and appreciate the fine line in which you both are involved or have at the moment.  Simply, it cannot be a situation of tactics

whereby people at a trial, a defence is changed halfway through on the most crucial part of the thing which was the situation of standing.  Your Honours, I understand what your position is and I respect your position.  But the simple fact is the evidence was before the courts, deposed, supported and was never denied by the other parties.  In reference to my claim of bias against Justice Nicholson, I withdraw that.

McHUGH J:   I think that is very proper of you.

MR BRIDE:   It is, because Ms Thompson has today given me the transcripts of the thing and it is not fair that he should even have that assertion put against him, so I withdraw that.

McHUGH J:   Yes.

MR BRIDE:   Your Honours, I have nothing more to say.  Simply, there has to be a situation where the evidence which was put before the court should be looked at and I would ask you to grant special leave.

McHUGH J:   Thank you, Mr Bride.  We need not hear you, Ms Thompson.

The applicant seeks special leave to appeal against an order of the Full Court of the Federal Court of Australia dismissing an appeal by the applicants against a sequestration order made against the estate of the applicants as trustees of the Pinwernying Family Trust.  The sequestration order was the result of a failure to comply with a bankruptcy notice based on a costs order made as the result of the applicants’ losing an action in the Supreme Court of Western Australia.  The applicants opposed the application for sequestration on three grounds, first, that the petition was brought for an improper purpose; secondly, the Court should go behind the judgment of the Supreme Court which, incidentally, was given after a 17 day trial, a four day appeal and a special leave application to this Court; thirdly, the Federal Court should have found that the applicants had an outstanding claim against the respondents in an amount greater than the judgment debt.

The primary judge of the Federal Court who heard the bankruptcy petition and the Full Court, in our view, rightly rejected these claims and nothing in the Full Court’s reasons warrants the grant of special leave to appeal in so far as those matters are concerned.

However, in addition to the matters relied on before the Full Court of the Federal Court, the applicants claim that they were denied natural justice in that the Full Court accepted the finding of the bankruptcy judge that affidavit evidence seeking to establish the nature of the applicants’ claim of the respondent consisted of mere assertions.  It is by no means clear that the Full Court accepted this statement of the primary judge but, if it did, the Full Court also gave a further and, in our view, a correct reason for rejecting the relevance of this claim of the applicants.  In any event, the primary judge in bankruptcy was not required to treat the allegations of the applicants as correct in adjourning the petition, notwithstanding that they swore to the truth of the facts and that there was no evidence to the contrary.  Whether the petition should be adjourned was a matter of discretion.  The judge, as the primary judge, was entitled to regard the affidavit as no more than the applicants’ version of the case.

Another ground relied on for special leave was that one of the Full Court judges was ostensibly biased but Mr Bride has very properly, having been shown a transcript, withdrawn that ground. 

The applicants also seek to allege that the petition was against the wrong parties.  However, this point was not taken in the Federal Court.  That being so, it is not a proper case for this Court to consider the issue, an issue which has not been dealt with by the courts below.

For those reasons, the application for special leave to appeal is dismissed.

MS THOMPSON:   Can I move for an order for costs?

McHUGH J:   It is probably irrelevant, but there is nothing you can really say against it, Mr Bride.

MR BRIDE:   That is correct, your Honour.

McHUGH J:   The application is dismissed with costs.

AT 11.30 AM THE MATTER WAS CONCLUDED