Campbell & Anor v Metway Leasing

[2000] HCATrans 497

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S21 of 2000

B e t w e e n -

KEITH MALCOLM CAMPBELL

First Plaintiff

LOIS AUDREY CAMPBELL

Second Plaintiff

and

METWAY LEASING LIMITED

Defendant

Application for questions to be reserved

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 7 NOVEMBER 2000, AT 9.34 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If your Honour pleases, I appear with my learned friend, MR M.G. SKINNER, for the applicant, which is the defendant in the proceedings.  (instructed by Lincoln Smith & Company)

MR J.W. SHAW, QC:   If your Honour pleases, I appear with my learned friend, MR J.R. DUPREE, for the plaintiffs in the proceedings and the respondent to this motion.  (instructed by Taylor Kelso and The Hargreaves Practice)

HIS HONOUR:   Yes, Mr Jackson.

MR JACKSON:   May I check the material that your Honour has in relation to that.  Your Honour should have our summons together with some affidavits by Mr Annis‑Brown, including one of 3 November 2000, which annexes a draft case.

HIS HONOUR:   Yes, that is right.  What is the initiating process for today?

MR JACKSON:   The initiating process for today, your Honour, is it should be a summons which is ‑ ‑ ‑

HIS HONOUR:   Filed in September; is that it?

MR JACKSON:   Yes.  I just do not have the date of it, your Honour.  Yes, 19 September.

HIS HONOUR:   Yes.

MR JACKSON:   There is an affidavit also of 12 September 2000 by Mr Annis‑Brown and ‑ ‑ ‑

HIS HONOUR:   Yes, I have his affidavit of 3 November and there is also one of 12 September, yes.

MR JACKSON:   And 6 November, your Honour.  That is an affidavit relating to the section 78B notices.  I am sorry, your Honour, that has not been filed, I understand, and may I seek to file that in Court.

HIS HONOUR:   Yes.  Has Mr Shaw a copy of that?

MR SHAW:   No, but I am sure one can be provided, your Honour.

HIS HONOUR:   Yes, the affidavit of Mr Wayne Vincent Annis‑Brown sworn 6 November 2000 may be filed in Court.  Yes, Mr Jackson.

MR JACKSON:   The position is this:  your Honour will see there is a draft case stated which is annexed to the affidavit.

HIS HONOUR:   Yes.  What is Mr Shaw's attitude to this?

MR SHAW:   Your Honour, I have given it intensive thought over the weekend, having only been recently briefed in the matter.  I think the stated case is in an appropriate form and I will not be opposing the stating of the case if your Honour is otherwise minded to do it.

HIS HONOUR:   Yes.

MR JACKSON:   Your Honour, could I say a couple of things about it?

HIS HONOUR:   Yes.

MR JACKSON:   One is this, that so far as the draft that your Honour has is concerned, we have made some amendments to it which are really purely stylistic and cut out the germanic air of it, if I can put it that way, to some degree.  Could I give your Honour a copy of that?  My learned friend has seen the amendments.  Could I give your Honour a document which actually shows what amendments have been made?

HIS HONOUR:   Yes, that would be helpful.

MR JACKSON:   They are in handwriting.

HIS HONOUR:   This is Mr Shaw's action, is it not, in the Court?

MR SHAW:   Yes, it is, your Honour, but because I think there was a period of inactivity on our side of the record and problems about legal representation, I think my learned friend's clients took the action of getting the thing under way by preparing the stated case, or draft stated case.

HIS HONOUR:   Yes.  Can I ask you, Mr Shaw, what is the practical result sought to be gained by your client by this litigation?  They are now out of bankruptcy.

MR SHAW: Yes. To allow the appeal before the New South Wales Court of Appeal to proceed, which appeal was said to have been barred by section 60 of the Bankruptcy Act.

HIS HONOUR:   And the subject matter of the appeal being what?  The possession claim, is it?  One of the properties has been sold, has it not?

MR SHAW:   All of the properties have been sold, but I think there is a money sum at stake.  My understanding is the orders of Acting Justice Barr dealt both with a debt and possession of property.

HIS HONOUR:   So there is judgment for possession and judgment for a sum of money.

MR SHAW:   Yes.

HIS HONOUR: So at the end of the day, putting aside the bar of section 60, what would the Court of Appeal then be doing?

MR SHAW:   It would be quashing the orders in relation to debt and awarding costs if the appeal were upheld.

HIS HONOUR:   But, I mean, there is a question of default here, somewhere or other.  Has that to be litigated?

MR SHAW:   I do not believe so, your Honour.  It is clear, and I think your Honour would have seen this, that the plaintiffs' claim was never dealt with on its merits before the Court of Appeal.  It was simply regarded as barred.

HIS HONOUR:   That is right.  I understand that.  But what are the merits?

MR SHAW:   There was a bias point and there is some confusion ‑ and I must apologise, your Honour, for the limited time I have had to look at it, but there is some question of whether all grounds other than bias were abandoned, but there was certainly a bias point tendered to the Court of Appeal.

HIS HONOUR:   Well, that would only lead to a retrial, would it not?

MR SHAW:   Yes.

HIS HONOUR:   Ten years after the event it would be.

MR SHAW:   Yes.  There was also an objection to the constitution of the Court of Appeal by way of objection to the presiding judge who had heard some interlocutory proceedings.

HIS HONOUR:   But what is the defence going to be?  Ultimately, at some stage your clients, if they get what they want out of this litigation, are going to have a hearing on the merits of this claim to recover this money from them and there is eventually going to be some court to which they do not

object.  What is their defence going to be to Mr Jackson's client's claim that they be paid the moneys that are said to be owing to them?

MR SHAW:   Yes.  I must admit I am in some difficulty in articulating that defence, your Honour.

HIS HONOUR: Well, if that is, at the moment, the somewhat ambiguous end destination, it is not immediately apparent to me why the already heavy lists of the Court next year should be burdened by, in the first instance, itself determining this constitutional question. At the moment there is a real question in my mind why I should not of my own motion transfer this present High Court action, once it has got in a suitable form, to the Federal Court, which can adjudicate on the validity of section 60.

The Chief Justice of the Federal Court has power to constitute a Full Court for hearing of these things in the first instance, if he is so minded, and it would be a matter for him.  The Federal Court decision then having been secured, one way or  the other, any complaint about that could then be tested on a leave application concurrently with the pending leave application from the Court of Appeal.

MR SHAW:   Yes.  I would respectfully regard that as very much within your Honour's discretion.

HIS HONOUR:   I will hear what Mr Jackson says about it.  The fact of the matter is it will not get on in this Court before the middle of next year in the Full Court.

MR JACKSON:   Yes.  Your Honour, I understand that.  The position is this, that your Honour will have seen, I assume, from the special leave application hearing that when the matter came on and it was then adjourned.  We would like to dispose of the matter, to put it shortly, your Honour, one way or the other.

Your Honour, may I say, we would suggest, with respect, that the special leave application and this matter be heard by the Court concurrently, as it were, or consecutively, because the resolution of this will dispose of, one way or the other, one would think, the application for special leave.  Your Honour, we are then left with a situation, if the matter goes to the Federal Court, that bearing in mind the history of it, whatever the merits of it are, it will be back before the Court again and then not disposed of.

HIS HONOUR:   But it will be back before the Court on a leave application.

MR JACKSON:   Quite, your Honour, yes, of course, but one would then have two leave applications being dealt with together and, your Honour, one again is talking about exactly the same time and if the case is one where the validity of an important and regularly‑used provision of the enactment is in issue, better to dispose of the matter as soon as possible, with respect, and this is hardly likely to be a long case.

HIS HONOUR:   Yes.  I would never reserve question 1, for example.

MR JACKSON:   I am sorry, your Honour, I did not catch that.

HIS HONOUR:   I would never reserve a question in terms of question 1:

Are s.60 of the Bankruptcy Act 1966 and the Bankruptcy Act 1966 generally ‑

no one is going to answer that.  It is like an oppressive exam paper.

MR JACKSON:   Your Honour, could I say in relation to that, we would be happy to have the words “and the Bankruptcy Act 1966 generally” excised from it. It is simply if our learned friend relies on some other provision then that is all that is directed to. We are in their hands in that regard.

HIS HONOUR: Yes. That makes it all the more attractive to send it to the Federal Court. Section 60 at some stage has been amended, has it not? It is section 60 at what date? Section 60 was amended in 1996 I see.

MR JACKSON:   These events all took place after that, I think so, your Honour, yes.  The notice to elect in one case was 16 July 1996.

HIS HONOUR: Wait a minute. Well, Act No 44 of 1996 only commenced on 16 December in that year, so it may be section 60 in its earlier form.

MR JACKSON:   It would be, I think, your Honour, in both forms.

HIS HONOUR:   Both forms.

MR JACKSON:   Both forms, in fact, because of the ‑ ‑ ‑

HIS HONOUR:   Well, that would have to be allowed for then in the questions, I suppose.  I am not sure about questions 2 or 3 either.

MR JACKSON:   Your Honour, could I say in relation to this, I would have to ask my learned friend to see what is being alleged because we would really like to have the issued resolved.

HIS HONOUR: Yes, I know. That is why I am increasingly moved to refer it to the Federal Court where there will be room to move, as it were, rather than locking things in with a stated case in this Court. What is the answer to all of that, Mr Shaw? Is not all you can get here an answer to a question as to whether section 60 in its form before and after Act 44 of 1996 is a valid law of the Commonwealth, question mark. It does not matter what power it is supported under.

MR SHAW:   Yes.  No, I agree, your Honour.  The way the plaintiffs would intend to put the point is essentially a Melbourne Corporation’s point, suggesting that the Commonwealth is intruding upon State judicial power.

HIS HONOUR:   What State judicial power?

MR SHAW:   Well, the operation and maintenance of the independent State Judiciary.

HIS HONOUR:   But all bankruptcy administrations do that one way or another, I suppose.

MR SHAW:   I do not want to confine the argument, your Honour, but that is, so far, the line of thinking that the plaintiffs have developed.

HIS HONOUR:   Before I stated the case I would need to know in some final form what the Full Court was being visited with.

MR SHAW:   Yes.

HIS HONOUR:   Now, are the pleadings completed?

MR SHAW:   There is certainly a statement of claim and a defence.

HIS HONOUR:   Is there any reply that has to ‑ ‑ ‑

MR SHAW:   No reply has been filed, your Honour.

HIS HONOUR:   Yes, but is there one needed?

MR SHAW:   I do not believe so.

MR JACKSON:   We are the defendant in the matter, your Honour.

HIS HONOUR: Yes, I understand that. Yes, I am of a view that I should transfer the matter under section 44 at the moment, but I should ask each of you what you want to say in opposition to that course.

MR JACKSON:   Your Honour, I have said, I think, all I can say at the moment.

MR SHAW:   I really find myself in agreement with Mr Jackson, that it may simply delay the matter and ‑ ‑ ‑

HIS HONOUR:   But it will not delay the matter.  The Federal Court can deal with it more quickly than we can.

MR SHAW:   Yes, I accept that, your Honour.

HIS HONOUR:   I think the Federal Court is the appropriate destination for the remittal given the expertise involved in the administration of the Bankruptcy Act in that court and the constitutional questions would be within 39B(1A)(b) of the Judiciary Act with regards to the Federal Court.

The orders I make are as follows:

(1) The Court notes that the pleadings in this action have closed and the Court orders pursuant to section 44 of the Judiciary Act 1903 that further proceedings in the action No S21 of 2000 be remitted to the Federal Court of Australia New South Wales District Registry.

(2)   Certify for counsel and costs of the action to date in this Court be costs in the Federal Court.

(3)   Otherwise the summons filed 19 September 2000 be dismissed.

MR SHAW:   If the Court pleases.

HIS HONOUR:   Gentlemen, if your solicitors liaise with the District Registrar, she will keep you up to date as to the process of transfer to the Federal Court.

MR JACKSON:   Thank you, your Honour.

AT 9.57 AM THE MATTER WAS CONCLUDED