Collier & Anor v ANZ Banking Group Limited

[1988] HCATrans 269

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S90 of 1988

B e t w e e n -

ROBERT JOHN COLLIER and MARION

LOUISE COLLIER

Applicants

and

AUSTRALIA AND NEW ZEALAND

BANKING GROUP LIMITED

Respondent

Application by respondent for

permanent stay of application

for special leave

GAUDRON J

Collier

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 10 NOVEMBER 1988; AT 10.01 AM

Copyright in the High Court of Australia

SlTl/1/RB 1 10/11/88

MRS M.L. COLLIER:	I appear in this matter, Your Honour.
MR G. BLAKE:	I appear for the respondent, Your Honour.

(instructed by Norton Smith & Co)

HER HONOUR:	Yes, Mrs Collier.
MRS COLLIER:	Your Honour, I presented yesterday some documents

to the Registry with a letter.	I had spoken to the
Registry on Tuesday.	We were in the Federal Court on

Tuesday morning before His Honour Justice Einfeld at

which the judge adjourned until this morning at

10.30am for documents to be produced in court, 3uch as

a report from my doctors. A copy of that is before

you.

Subsequently there will also be my entire file

produced as subpoenaed by the ANZ Bank yesterday

afternoon and collected to their office.

I am asking Your Honour for a short adjournment

of at least two hours to enable the granting of my

disbursement from bankruptcy, to grant me the chance

to then carry on independently of the official receiver

and have a case against the ANZ Bank.

HER HONOUR:  Mrs Collier, the applicants in the matter before

me are yourself and your husband.

MRS COLLIER: That is right, Your Honour.

ii.ER HONOUR: Is your husband present today?

:MRS COLLIER:  He is not, Your Honour. He was not able to be

here this morning. The fact is that we will also be

lodging an amendment to the application and it will be on the basis of myself taking action against the

ANZ Bank and not my husband.

HER HONOUR~ Mrs Collier, you recolle~t that on the last

occasion I indicated that I would be declaring

pursuant to section 60(2) of the BANKRUPTCY ACT that

the action was stayed and that this matter was listed

today for the purpose only of ascertaining whether the

bankruptcy of yourself and your husband had been

annulled and, if so,·to determine the status of the

application you had filed. Now, as I understand it,

you would be proposing, in the event that your

bankruptcy is annulled, that you would become an

applicant but your husband would not.

MRS COLLIER:  That will have to be the case, Your Honour, because

I can see that the ANZ would make it very difficult .....

the official receiver for my husband to take action

against him. ·

HER HONOUR: Well, Mrs Collier, that raises quite different

problems from the ones we had in mind on the last occasion.

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Collier

MRS COLLIER:  I realise that and I am sorry that we were

not in any state at 10 o'clock this morning to carry

on, but I was in no position to argue with His Honour

Justice Einfeld who assured us that we should be there

at 10.30 and was not able to see us yesterday at all.

I had asked for an adjournment of the court until

yesterday morning in the Federal Court, at which

everything would have been finalized and settled.

And I have no doubt that the matter before Justice Einfeld

will dismiss my bankruptcy. As the file that Mr Blake

has on him from my doctor can verify for me.

HER HONOUR:  Yes, I understand your position. Do you object

to the adjournment for two hours, Hr Blake?

MR BLAKE:  Yes, Your Honour. The position of the Bank is

that the adjournment would be futile. Your Honour will

ha.ve the affidavit: of David Ross Richardson of
2 November where that affidavit has annexed to it a
letter, annexure A of 11 October. Your Honour will

see that annexP.s two letter. Annexure A is a letter

from the Bank's solicitors, Norton Smith & Co to the

official trustee, and we would submit giving due

notice of the proceedings and asking the ·,.:rustee to

make an election.

HER HONOUR:	Yes.
MR BLAKE:	And the reply of 24 October, we would submit,

unequivocally makes an election within the terms of
section 60(2), therefore the action has been

discontinued.

Your Honour, why we say an adjournment is futile

is that section 154(2) of the BANKRUPTCY ACT - does

Your Honour have a copy there?

HER HONOUR:	Yes, I do.
MR BLAKE:	Your Honour will see that that section provides

that: 

Where a bankruptcy is annulled under this

section, all sales -

et cetera, and relevantly -

all acts done, by the trustee ..... shall be

deemed to have been validly made or done - and it then goes on to provide for revesting of

property back in the bankrupt. Your Honour, the Bank

would submit that the election by the trustee is an act done within the meaning of section 154(2), that

it is deemed to have been validly made and therefore

even if the bankruptcy of Mrs Collier were to be

annulled, that would 3ot affect the election made by fne trustee on 24 ctober.

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Collier

MRS COLLIER:  Excuse me, Your Honour, if I can object to that,

please.

HER HONOUR:  You will get your chance, Mrs Collier.

Mr Blake, there may be arguments to that which may go

past 10.30, may there not?

MR BLAKE: There may well be, Your Honour.

HER HONOUR:  Very well. If that were to be the case, one would

necessarily have to stand the matter down, I think,

while Mrs Collier went elsewhere.

MR BLAKE:	Yes, Your Honour, if that is convenient to you.
MRS COLLIER:	Excuse me, I misunderstood that. Could I ask

you to repeat it, if it is possible.

HER HONOUR:  I said there may be arguments as to what

Mr Blake is now saying that would go beyond 10.30.

MRS COLLIER:	Yes, I think it most definitely would, Your Honour.
MR BLAKE:	Is the position of Your Honour that you -

HER HONOUR: Perhaps I should explain it again. There may

have been some misunderstanding. On the last occasion

this matter was before me it was, I thought, clearly

announced that a declaration would be made that the

proceedings were discontinued by force of section 60,

I think it is, of the BANKRUPTCY ACT.

MR BLAKE: Yes, Your Honour.

HER HONOUR:  And the purpose of listing today is confined very

strictly to a consideration of the status of the

proceedings in the event that by today the bankruptcy

was annulled.

MR BLAKE:	Yes, Your Honour.
HER HONOUR: There is no doubt that the proceedings are

discontinued.

MR BLAKE:  You did express some doubt on the last occasion as

to whether a valid election had been made within the

terms of section 60.

HER HONOUR:	Yes, I recollect that.
MR BLAKE:	Now the Bank has redone the exercise and we would

submit that there can be no doubt at this point in

time that the proceedings have been discontinued and

therefore Your Honour should proceed as you indicated

on the last occasion.

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Collier

!:-'IRS COLLIER:  If I could be so rude and intervene I might be

able to help everybody. I notice there are two

other cases to come before you today or at least

one, Your Honour, and on Tuesday I had asked for an

adjournment until Tuesday afternoon to present the

medical practitioner in person. The Bank did object

to that and were quite happy to take a sitting of

this morning. I feel that since you do have to be in

Court and do have to hear the other cases, that it

would not be unfair for me to seek your approval to

adjourn this case to enable us to not hold Justice Einfeld

up and I am sure he will try and accommodate you by

hearing us as quickly as possible.

HER HONOUR:  Yes, I understand that position. Mr Blake, however,

wishes to argue that an adjournment is futile.

!:-'IRS COLLIER: Well, if I may be so rude I can say it is not

futile - - -

HER HONOUR:  You should let him put his argument, Mrs Collier.

You will get a fair chance to put yours when he is

finished. Now, you should let him - and in your own

interests, you should listen to what he has to say

without putting forward your own views. We are

discussing simply the question of the adjournment.

Yes, Mr Blake.

!:-'IR BLAKE:  Your Honour, the equivalent of section 154(2) in

the English bankruptcy has been considered in a case

from the headnote at page 538 the terms of section 81

of BRANDON V McHENRY - I hand up a report to

of the BANKRUPTCY ACT of 1869. It is in almost

identical terms to section 154(2). The case involved

bankruptcy which is similar to the power to make an	a rejection of a proof of debt by a trustee in
election. There is also a power given to the trustee
under the BANKRUPTCY ACT and, Your Honour, at page 542 at about point 6, the Master of the Rolls, Lord Esher
said:

Therefore the case stands thus: there is a

claim in the bankruptcy; it is rejected by

the trustees;and there is no appeal against

their decision. Afterwards the bankruptcy is

annulled. What,then,is the effect of the

annulment? The 81st section of the BANKRUPTCY

ACT, 1869, provided that, "wherever any

adjudication in bankruptcy is annulled,

all sales and dispositions of property, and

payments duly make, and all acts theretofore

done by the trustee or any person acting under

his authority, or by the Court, shall be valid."

It seems to me that the rejection of a claim

by the trustee is an act done by him within

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Collier

the meaning of the section, and therefore such
rejection holds good after the annulment of
the bankruptcy. If that is so, the claim so

rejected cannot be enforced after the

bankruptcy is annulled.

Your Honour, there is certainly a different power

which the trustee exercised here, one of whether to

prosecute or discontinue the proceedings, but

none the less it is a power which it can exercise

under the BANKRUPTCY ACT and we would submit that the

same effect would follow as in BRANDON V McHENRY.

HER HONOUR:  But what is the effect of the discontinuance of

proceedings?

MR BLAKE:  We would submit that the appropriate course is

that there is no proceeding before the Court and the

application for special leave to appeal should be

struck out.

HER HONOUR:  If there is no proceeding before the Court, there

is nothing to strike out. That is the short answer,

is it not?

MR BLAKE:  Yes, Your Honour, but we have applicants here who,

without the consent of the official trustee -

HER HONOUR:	And proceedings which are, it is accepted and was decided on the last occasion, are and have been
discontinued.

MR BLAKE:  No, Your Honour. I think,Your Honour,on the last

occasion was a stay. You indicated that you would -

HER HONOUR:  Mr Blake, I have this problem: if there are no

current proceedings before the Court, then there is

nothing for me to stay or to strike out. What I can

do, however, it seems to me, is declare that the

proceedings are discontinued.

MR BLAKE: Yes, Your Honour, I would ask you to make that order

because we have - - -

HER HONOUR:  And I indicated on the last occasion that that

was the order that would be made.

MR BLAKE:  Subject to our satisfying you there had been a

proper election.

HER HONOUR:	Yes.
MR BLAKE:	We would ask you to make that order.
HER HONOUR:	There still remains the question - or there would

remain the question as to the status of the proceedings,

were they beyond revival if the bankruptcy were annulled.

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Collier

MR BLAKE:  Your Honour, our submission is that they are,

because the effect of the election is that that

constitutes a valid act by the trustee, notwithstanding

any annulment, and there has been a valid discontinuance.

Now, it would be open to - - -

HER HONOUR:  Is there no power in the Court to revive them

in the event that the bankruptcy is annulled, that

is really the question that - - -

MR BLAKE:  We would submit not, Your Honour. Maybe if the

election had been made for an improper purpose, that

would be different, but there is no evidence of that

before the Court.

HER HONOUR:  Either there is power or there is not power to

reinstate them.

MR BLAKE:  We would submit there is not, Your Honour. The

section is quite clear that the act is deemed to be

valid.

HER HONOUR:  Yes, well that is not in issue, as I understand it.

The question is is there any other power in the Court?

MR BLAKE:  We would submit not, Your Honour. We just say to

continue on with this is just futile and you should

act as you indicated on the last occasion.

HER HONOUR:  Thank you. Yes, Mrs Collier.

MRS COLLIER:  Thank you kindly. First of all I would like to

point out that I do not think that - I may be .. wrong

here and please bear with me - but my interpretation

is the basis for which the bankruptcy being dismissed

this morning is sought is on medical grounds as at

the time of signing that document.

HER HONOUR:  I am not interested in that, Mrs Collier. The

question in this Court listed for determination today

was whether, if the bankruptcy had then been annulled,

which it has not been, the proceedings could be

reinstated. Now, those proceedings, Mrs Collier, are

proceedings which were commenced in the name of

yourself and your hu~band and they are proceedings

which I have indicated before have been discontinued.

Now, the question is, is there anything that can be

done to reinstate them, assuming your bankruptcy is

annulled, and that is the question you have to address, not the question - indeed, the question is hypothetical

at this stage.

MRS COLLIER:  Well yes, Your Honour, the answer is yes and I

am seeking - basically I came in here to seek an

adjournment. I did not expect Mr Blake to be arguing

a point of anything. It was discussed in the

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Collier

Federal Court that we would be seeking an

adjournment. I am only saying that yes, there is

fresh or a chance of reopening cases.

HER HONOUR:	But where is my power to reinstate proceedings which have been discontinued? That is what you have
to tell me, Mrs Collier.
MRS COLLIER:	What I am trying to say is that the proceedings

will be classed as not discontinued by - - -

HER HONOUR:	But they are discontinued, Mrs Collier. indicated on the last occasion that they were - that the declaration I would make was that they were	I
discontinued.

MRS COLLIER:  What I am trying to say, Your Honour, is please -

and I hope you understand me - is that the official

receiver was to be in the power of deciding that and

therefore, after going before the court this morning

and having the bankruptcy dismissed, I was never

bankrupt and therefore - - -

HER HONOUR:  Mrs Collier, we are not here to discuss whether

you were ever bankrupt. It was clearly stated on the

last occasion,: and you were questioned and conceded

that you understood, that the matter would be listed

today for the purpose only of ascertaining whether the

bankruptcy of the applicants has been annulled and if

so, to determine the status of the application filed

on 11 July and which has been discontinued by operation

of section60(2) of the BANKRUPTCY ACT.

MRS COLLIER:  Your Honour, all I am asking is that the bankruptcy

will be dissolved this morning; there is another case

here for you to hear; I will also contact my husband

and have him present in Court; I am only asking, even

not two hours, I am asking for a short adjournment and

surely that is not unheard of.

HER HONOUR: Mrs Collier, the question is: is it futile? Is

there anything you can put to me suggesting a power

in the Court to revive proceedings which have been
discontinued by force of section 60(2) of the

BANKRUPTCY ACT?

MRS COLLIER:  Yes, there is, Your Honour.

HER HONOUR: There is?

MRS COLLIER:  Yes, and I am only here this morning myself on

the basis of asking for the adjournment to go to the

Federal Court. I will be represented in Court this

afternoon by a solicitor who will put all the avenues

forward to you. So, yes, and I feel that he is

probably able to explain to you probably in half an

hour what might take me four hours and annoy everybody

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Collier

trying to understand all my lay lingo, so to speak,

and I feel it w.ould be more beneficial for you, as

well as everybody else's ears and patience, to grant

me this adjournment. I am sorry that I did not bring

a solicitor this morning but basically it was of no

use bringing one into the Federal Court on the grounds

of what I was seeking.	I felt that it was better to
do that myself.

HER HONOUR:  Mrs Collier, Mr Blake, I am going to allow

Mrs Collier to come back at 12 o'clock, but let it

be clear to everybody that it is declared that the

application for special leave to appeal is by force

of section 60(2) of the BANKRUPTCY ACT discontinued.

That declaration will be reduced to writing and

available in the Registry.

At 12 o'clock, Mrs Collier, I am prepared to

hear you. I am prepared to treat that which has

happened in this Court to date as an application to

revive the proceedings but there are several questions

that must necessarily be determined before that

application can be thought to have any merit: firstly,

that the bankruptcies have been annulled; secondly,

that there is power in this Court to revive the

application; and thirdly, assuming those things in

your favour, that that is a course which the Court ought

to take.

Now, do you understand Mrs Collier?

MRS COLLIER:	Yes, Your Honour.
HER HONOUR:	Now, they are the three questions that arise.
MRS COLLIER:	Thank you, Your Honour.
HER HONOUR:	In a sense, Mr Blake, there is no point in your

asking for costs of your successful application, is

there? Your application has been successful, and

was successful on the last occasion. Is there any

point in asking for costs?

MR BLAKE:  Your Honour, I think we would ask for them. I

accept what you say. I accept the practical reality -

HER HONOUR:  There may be - I suppose there may be some point,

is there?

MR BLAKE:	There may be some point.
HER HONOUR:	I will stand the question of costs of your

successful application down until 12 o'clock, and

Mrs Collier, the matter will be disposed of at

12 o'clock and it will not be further adjourned.

Do you understand that?

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Collier

MRS COLLIER:  I will not be seeking any further adjournment,

Your Honour. I had hoped not to even seek this one.

HER HONOUR:  Very well. The matter will stand down until

12 o'clock.

AT 10.28 AM THE MATTER WAS ADJOURNED

Tl	UNTIL LATER THE SAME DAY
UPON RESUMING AT 12.07 PM:
HER HONOUR:  Yes, Mrs Collier.
MR BLAKE:  Your Honour, can I just inform Your Honour where

the Federal Court proceedings are up to? The

Bank this morning made an application to intervene

in Mrs Collier's application for an annulment and that has just been granted by Mr Justice Einfeld.

The application for an annulment has not been determined at this stage.

MRS COLLIER:  Your Honour, we did not get on until after

11 o'clock, I am afraid. The other case was in the

midst of hearing evidence.

HER HONOUR:	And what is happening before Justice Einfeld?
MR BLAKE:	He has adjourned so that this mention at 12 o'clock

might take place.

MRS COLLIER:  And then we have to notify him to go back in.

It would have been more convenient, if I am not

being rude, if both of you were together we could

save - - -

HER HONOUR: That is not possible, Mrs Collier. The matter is

to proceed before Justice Einfeld today, is it?

MR BLAKE:	Yes, Your Honour.
HER HONOUR:	Do you have any estimate as to how long?
MR BLAKE:	The in fact vital witness is not here so I very

much doubt that it can be completed today.

MRS COLLIER:  Your Honour, the vital witness will be here

this afternoon.

MR BLAKE:  Your Honour, I would -

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Collier

HER HONOUR:  Mrs Collier, you must not keep interrupting

as people are speaking.

MRS COLLIER:	I am sorry, Your Honour.
HER HONOUR:	But Mr Blake was just in mid-sentence when you interrupted.
MRS COLLIER:	I was just asking could I go somewhere, it

is something that I have to do,	I am sorry,
if it is possible.

HER HONOUR: Please let Mr Blake finish his sentence then

interrupt, if you must. Yes, Mr Blake.

MR BLAKE:  Your Honour raised the question this morning

of whether there was power to revive the proceedings.

Your Honour may well have had in mind the FAI

V SOUTHERN CROSS case where a question somewhat

similar was considered. Your Honour, the Ban~ -

would say that there is no power for revival

for these reasons and - Your Honour, this may

not arise because the application for annulment

may not be successful but even if it were we

say that there is no power to revive and, therefore,

continuing in this Court is a matter of utter

futility.

HER HONOUR:	Yes, that is certainly a matter though on which Mrs Collier is entitled to be heard.
MR BLAKE:	Yes, Your Honour.
HER HONOUR:	What was it that you wished to say?

MRS COLLIER:  I am sorry, I was being rude before. What

I was going to say was I have just been involved

in the Federal Court and I have not had a chance

between Federal Court and here because my husband

has arrived and we were just talking a few seconds

before I came in.	I am going to be rude and
ask you, could I just ask the Court if I may
leave the room for a few minutes.	I have to

adjourn myself to somewhere for a few seconds,

if that is alright.

HER HONOUR:	Yes, well, how long will that be, Mrs Collier?
MRS COLLIER:	Only a few minutes, I am just going to the

end of the floor. I was actually going to the

ladies, if that is alright.

HER HONOUR:	Very well.	5 minutes.
MRS COLLIER:	That is alright, thank you.	I am sorry,

I could not help it, Your Honour.

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Collier

HER HONOUR:  We will adjourn for 5 minutes.

AT 12.11 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.19 PM:

HER HONOUR:  Mrs Collier, what is your application?

MRS COLLIER:  Your Honour, I have been totally taken by

surprise. I did not expect, first of all, to

have to wait for the case to be finished in the

other court and then the trouble ~aused.

I will mention that in the process- ~f~~ction · in that court which has probably delayed· it is

the fact that documents that were to be produced

in court were actually opened and looked at before

they got to court. What I am actually asking

is, I do not really know on the basis that I

have not, because of this coming up, I have not

had a chance to seek legal help or advice. I

am just bewildered, firstly, the manner in which

everything has gone and I am asking that - I

really do not know. I mean, I have been granted

so much by you, even the last little one, I am

sorry and I thank you very much for that.

Basically, I am at a loss. I know that

we have got a case that has got to be fought

this afternoon in court. I could say to you,

"I am going to win", and Mr Blake will get up

and say, "I am going to win". I mean, that is

what his role is, he is paid to say that and

everybody says they are the right person.- I really

do not know whether - I know that I will win.

I have not got any doubts in that court.	I know
that if all avenues of action are denied to us

by the High Court - or denied to me on the basis

that I were the only one out of bankruptcy but

I believe it is of the national interest that

the case be fought.

I find that the legality of the Land Titles

Office, not only of New South Wales but of Australia

in each State, is disputed by the ANZ obtaining

possession of my property and I believe that

it is leaving the gap open for people to go into

contracts, told by people -

HER HONOUR:  What is your application to me?

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Collier

MRS COLLIER: My application to you is, basically, I cannot

apply at the moment. I am mid-stream in a case

which is going to grant me the rights to talk

to you. At this stage, legally and technically,

I am not supposed to have the riRhts to do so

and I am sort of saying to you, Look, I am sorry

that we've had to come back in here." but, I

mean, we would have been rude if we had not and

Justice Einfeld pointed out that you had said

you wanted us at midday, so, therefore, he has

adjourned the court until he is advised that

we are ready to go back to him.

I originally had come here this morning

to apply for an adjournment to this afternoon

hoping that the case this morning would have

been over and done with. I was very surprised

to find that the documents that were subpoenaed

yesterday afternoon that were to come to the

court had actually gone to the office of

Milton Smith, were opened, were presented to

court opened, at which Justice Einfeld has ordered

an affidavit of the entire circumstances.-

HER HONOUR:  That does not concern me.

MRS COLLIER: Right, but I mean they have hindered the

matter entirely. I find that because of the

intervention of the ANZ Bank my position is placed
in jeopardy. I am hoping that the Court will

see clear to try and assist me in this effort

by being -

HER HONOUR:	How can the Court assist you? Tell me that?
MRS COLLIER:	Grant me a further adjournment, if you

will?

HER HONOUR:	You wish to apply for a further adjournment.
MRS COLLIER:	I do, if it is possible.
HER HONOUR: Until when?
MRS COLLIER:	Tomorrow morning, Your Honour, would be fine.

Or whenever you feel fit. I mean, I do not know

what your diary is, I am sorry.

HER HONOUR:	What do you say to that, Mr Blake?
MR BLAKE:	Your Honour, I oppose it on the grounds of

futility.

HER HONOUR:	Yes, well, that, again, is a matter which Mrs Collier has not yet addressed and that is
a serious question, Mrs Collier.  Have I got
any power to do anything?

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Collier

MRS COLLIER:	Yes, you have, Your Honour.
HER HONOUR:	What power have I got?
MRS COLLIER:	You have the power to overrule the decision

made by the Court of Appeal - - -

HER HONOUR:  No, I certainly do not have that power. I

certainly do not have that power and the only

question here today is whether or not I have -
the application for special leave being discontinued

by force of the BANKRUPTCY ACT, whether there

is anything I can do about that application and

you have not addressed that issue at all.

MRS COLLIER:  I am sorry, Your Honour. I have misunderstood

you. Please forgive me. Not being involved

in law I am sorry if you have to explain a few

things, please forgive me. The thing is, yes,

you have the power.

HER HONOUR:	Well, where is it?
MRS COLLIER:	The fact that the application I have made

in the Federal Court,when successful,will backdate

my annulment to the day it was signed so at the

time -

HER HONOUR:  But that is not the question. The question

is, the proceedings having been discontinued

by force of the BANKRUPTCY ACT, is there any power in this Court to reinstate them? That

is not to say if you are successful in having

your bankruptcy proceedings annulled that you

may not be able to make further application for

special leave to appeal out of time. The question

is: is there anything I can do about the application

that was formally lodged, even if your bankruptcy

is annulled?

MRS COLLIER:  Yes, Your Honour.

HER HONOUR:  Well, where is my power?

MRS COLLIER: Well, bear with me .. Do I understand that

if my bankruptcy is annulled and I come back
to you, then I ask for that original application

to be looked at all over again, is that what

you said, virtually?

HER HONOUR:  I am asking if there is any power in me to

do anything about your application, your original

application?

MRS COLLIER:  I see your point there. I do not know,

Your Honour, but all I know is that when you spoke the last time that we were here in Court

SlTS/5/ND	14	10/11/88
Collier

before this morning - I may have misunderstood
you but I thought you said that if the application

was dismissed that you would not - - -

HER HONOUR:  Mrs Collier, we have been through this several

understanding that the purpose of today 1 s hearing	times and on each time you have asserted your
was to determine the status of the application
filed on 11 January 1988 if your bankruptcy had
by today been annulled.

MRS COLLIER:	Yes, I know that but I misunderstood you on the basis that I thought you further said
if the bankruptcy was not annulled by today and was in the court channel that you would not allow any future application to be lodged after the bankruptcy was granted.
HER HONOUR:	Mrs Collier, I do not allow or disallow future

applications, they are a matter that may be made

if the Rules so permit.

MRS COLLIER:  All I am trying to say at the moment is,

I feel that I was in the right to lodge an application.
I feel that the Federal Court will determine that I was not bankrupt at that stage.and I am

imploring the Court to take into account the

fact that although Mr Blake says that it is futile

fighting the case we are actually talking in

the future.

HER HONOUR:  What Mr Blake says is, "Even if your ban~ruptcy

is annulled there is nothing I can do to revive

the application", which, on the last occasion,

you conceded had been brought at a time when

you and your husband were bankrupt and was therefore

not a proper application.

MRS COLLIER:  At this stage - I am a layperson. I had

originally asked for an adjournment until 2 pm

and I was granted 12 noon which was one and a

half hours after we were in Court. I am asking

you and I am imploring the Court to take into

account - - -

HER HONOUR: Mrs Collier, the point 1s, can you give me

any reason to think that there is any point in

giving you the adjournment? That is, that even

if your bankruptcy is annulled there is anything

I can do to reinstate your application.

MRS COLLIER:	Yes, Your Honour.
HER HONOUR:	Well, tell me.
MRS COLLIER:	And I am hoping that if I can get legal

representative in here he can point out the

SlTS/6/ND	15	10/11/88
Collier

exact legal points. I mean, what I say, I might

say things and the way I word them might end

up making me liable. I mean, I am not a solicitor

and I am trying to fight two cases on one day

and trying to get my mind from one point to another

the whole way. And I feel that, yes, I would

legally be able to get a legal representative

into this Court to represent me and put the sound

firm arguments across to you that will not tire

your patience.

HER HONOUR:  Assuming that that is right and I do not for

one moment express a view either way about that,
but assuming that is right, presumably that can

be done any time.

MRS COLLIER:  I suppose it can but it will only hinder

my case when the first thing the Bank will argue

is it has been dismissed in this Court before

so therefore why should you bother to look at

it and it may not necessarily come before you.

HER HONOUR: Mrs Collier, do you tell me that you are -

I mean, I have asked you now several times: where do you say my power is?

MRS COLLIER:  In determining whether or not our application

is just.

HER HONOUR:	No, Mrs Collier.
MRS COLLIER:	Our application should go on.
HER HONOUR:	Whether your application is still extant,

still exists or-it does not exist.- it has been

held that it does not~ whether it can be revived.

MRS COLLIER:  Because if the bankruptcy is annulled I was

never bankrupt at the time that the original

application was taken out so, therefore, the

Official Receiver whose letters you have got

in front of you now had no rights or power to
intervene in my actions.	And so, therefore,

the Bank's argument and the reason in which it got my application stayed or dismissed was the

basis that the Official Receiver had - - -

HER HONOUR:  It has been neither stayed nor dismissed,

it has been declared to have been discontinued

by force of the BANKRUPTCY ACT.

MRS COLLIER: Exactly, been discontinued by force of the BANKRUPTCY

ACT, means that that is the reason given

for this continuance of the application and once
the bankruptcy is annulled not by me today as

paying the bill out today, but annulled because

on 21 June when that paper was signed by me and

SlTS/7/ND	16	10/11/88
Collier

lodged on the 22nd, I was not in a state to know
what was happening so therefore it was actually an

illegal document from the time that it was first

presented. So it is not a case of saying the

Official Receiver had the rights between the

day - 22nd June - and 10 November because it

is retrospective of 22 June.

HER HONOUR: If you are right on that and, again, I express

no opinion, that is a matter which you will have

to assert, in my view, by some other application

to the Court.	At the moment you have not persuaded
me that I have power to reinstate.it.	I have

asked you - is there any other matter you wish

to put to me.

MRS COLLIER:  I am trying to say to you that I feel, yes,

you are the last avenue that we have to express

our point and without reinstating this application,

as stated previously in the Federal Court, there

is a possession which the Bank has on the property

and I am saying that under section 154A I feel

that you have the power to act.

HER HONOUR:  154?

MRS COLLIER: Could I be rude? Could I just borrow

Mr Blake's book for about two seconds? Thank you very much. I think it is(~(a), I am just

trying to find it at the moment. I am sorry,

Your Honour, I had it written down and I just

have not got it with me but it is section 154

and it is relating to sequestration orders.
What I am trying to say, Your Honour, is that

I feel that the relevant clauses used this morning,

such as section 60(2), how the Australian

.,.,.	bankruptcy and also English bankruptcy is expressed,
.... ~	have no being in the matter determined by the
outcome of the last case. We have been delayed
and I am sorry we have been delayed but I feel
that - backtrack .

HER HONOUR:  That is backtracking. The question is, where

is my power, even assuming your bankruptcy is

annulled, to reinstate the application?

TS MRS COLLIER: I am sorry, I did have it and I just got

muddled up.

HER HONOUR:  And assuming that power is there, in any event,

that is not a power that would disappear, as

it were. if there is power there, then you may

make an application by serving notice on the

respondent and, presumably, the other applicant,

seeking someone to exercise that power.

S1T6/1/ND	17	10/11/88
Collier

MRS COLLIER: It may well be the case but, Your Honour,

my husband had come to Court and I had asked

him to contact somebody for me. I am only speaking

myself and I have had to go through this morning

and I have had Tuesday in court, you must bear with me. I am sorry, I have not seen him come

back into Court as of yet but he had gone to

use the telephone to communicate with a solicitor. I do not feel I am really in a position to express

to you, because I do not know the exact terminologies

or the exact clauses or subsection or so forth

that would apply,and I am afraid at the moment

I am so bamboozled by everything that is happening

that everything is sort of spinning on the thought

of it. All I do know is that the chance is that

you are right. If you had no power there would
be nothing to stop me, out of bankruptcy, to

take fresh action. That may well be the case but I feel it would prejudice my chances both at the Registry and once we got to Court,whosoever

it comes before, on the basis that the legal

representatives of the Bank, straight away say,

"But it was thrown out last time", without having

to mention the reason for why it was thrown out or what for because it is only having to waffle

on and go into all the bits and pieces.

I feel I am not in a position to actually

express to you why you have the power and why you have not, at this stage, and I was hoping

that my husband would have notified me as to

what is going on.

HER HONOUR:  Where is your husband?

MRS COLLIER:  He is in the building, Your Honour. He was

in the building at the Federal Court.

Mr ~cClusky did see him here. I am hoping to

find' s~thformation out and hopefully present

to you. I know in myself but what I know and what is the terminology or the clauses is two

different things, I am afraid.

HER HONOUR:  Mrs Collier, I am not prepared to further

adjourn this matter.	I have made a declaration.
That will be taken out in the Registry.	The position

is you will have to take such further action

as you may be advised.

MR BLAKE:  Your Honour, you reserved the question of costs

to 12 o'clock. We would ask for costs.

MRS COLLIER: At.this stage, Your Honour, I feel that costs

cannot be granted.

HER HONOUR:  Why do you say that?

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Collier

MRS COLLIER: If you are acting upon the rules of the

bankruptcy, then my husband and I are still legally

bankrupt. ·

HER HONOUR:	What do you say to that, Mr Blake?
MR BLAKE:	Your Honour, the position is that Mr and Mrs Collier,

without consent, brought an application for special
leave to appeal. Notwithstanding that lack of

consent they have sought to prosecute the application

and I would submit the respondent was quite justified

in bringing this application in order to bring

this matter to finality.

HER HONOUR:  I am not too sure that that is right, actually.

I am not too sure that it has.

MR BLAKE:  As Your Honour has said, an application in the

future can be made. That has to be dealt with

when and if it is made but the fact is that this
application when made by Mr and Mrs Collier was

done at a time when the proceedings were stayed

and they sought to prosecute the matter by preparation

of appeal book et cetera. The Bank, .in the

circumstances where the matter had been stayed

and further when an election had been made, sought

to have the matter - at least this application -

finalized once and for all. And the effect of

Your Honour's order is to do that. That is

not to say that some other application may be

made in the future but in terms of this particular

application that brings finality.

MRS COLLIER:  Your Honour, if I may be so bold, the Registry,

when I went and spoke with Registry and said I was
wishing to annul the bankruptcy were fully informed
of the bankruptcy and if I am not mistaken it
was never done with any deception in this case
but I believe that if a pe~n is bankrupt,and

Mr Blake is so pushing on certain sections of the bankruptcy law,then he must fully be aware

that there are other sections of the law that

state that they cannot be held liable for debts

in excess of $500. Now, I believe that his fees

alone will be in excess of $500. not to mention

his instructing solicitors. And I feel that

in this case information was obtained that should

never have been in their possession and on that

basis alone, I think that I would be also paying

for those hours of service.

HER HONOUR:  Mr Blake, I am not disposed to make an order

as to costs.	It is not clear to me, even on
the material,	precisely as and when the discontinuance
took place.

S1T6/ 3 /ND	19	10/11/88
Collier

MR BLAKE: If Your Honour pleases.

HER HONOUR:  Or even as to whether the proceedings were

ever properly instituted. I think there are two

different issues, neither of which has been

precisely determined and both of which would

necessarily have a bearing on the question of

costs and, in the circumstances, I would make

no order as to costs.

MR BLAKE: If Your Honour pleases.

HER HONOUR:  The Court will now adjourn.

AT 12.43 AM THE MATTER WAS ADJOURNED SINE DIE

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Collier