Collier & Anor v Australia and New Zealand Banking Group Limited

[1991] HCATrans 181

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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 for the lifting of

a stay

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 29 JULY 1991, AT 11.56 AM

Copyright in the High Court of Australia

Collier(2) 1 29/7/91

MR G. BLAKE: If Your Honour pleases, I appear for the

respondent to the notice of motion.	(instructed by
Norton Smith & Co)

HER HONOUR:	You are Mrs Collier?
MRS M.L. COLLIER:	Mrs Collier, yes, Your Honour.
HER HONOUR:	And you appear in person.

MRS COLLIER: Yes, Your Honour.

HER HONOUR:  You are Mr Collier, are you, and you appear in

person?

MR R.J. COLLIER: Yes, Your Honour.

HER HONOUR:  It is a joint application by both of you?

MRS COLLIER: Yes.

HER HONOUR:  And it is an application to lift the stay

previously made by me?

MRS COLLIER: Yes, that is right, Your Honour.

HER HONOUR:  Now, is there an affidavit on which you move

relating to the lifting of the stay?

MRS COLLIER: There was an affidavit, Your Honour, that was

lodged with a notice of motion, of - there is one

dated 19 July and one dated 26 June.

HER HONOUR:	I have got one dated 13 June.
MRS COLLIER:	I think that is the other one I was about to

come to, Your Honour. There is one dated 13 June,

26 June and 19 July.

HER HONOUR:  Yes. These go to the lifting of the stay, do

they?

MRS COLLIER: Yes, Your Honour, they do.
HER HONOUR:	Now, I understand that there has been an

application for an Anton Pillar order that has been

stood over to today?

MRS COLLIER: Yes, that is right, Your Honour. There is

also, Your Honour, an affidavit that has been made

out today by my husband which we would like to ask

the Court if it could be accepted.

HER HONOUR:  And has Mr Blake seen that?

MRS COLLIER: Not yet, Your Honour, but I will show him a

copy.

Collier(2) 2 29/7/91

MR BLAKE:  Your Honour, can I indicate that the respondent

has not been served with a copy of the affidavit of 19 July. We certainly are aware and have copies of the affidavits of 13 June and 26 June.

HER HONOUR:  Mrs Collier, if you wish to rely on it, you must give - - -

MRS COLLIER: There was - my husband actually arranged for

the delivery to Mr Blake so I will let him explain

if there is or not one.

MR COLLIER:  As far as I am aware, Your Honour, there was an

affidavit attached to it but, if necessary, I can

get a copy of that to give to Mr Blake.

HER HONOUR:  Yes. Well, I think you had better do that -

better give him a copy.

MRS COLLIER: 

Your Honour, I was just pointing out that with

reference to the Anton Pillar orders, it would have
to be a case now that it would be an ordinary
application put before the Court.

HER HONOUR:  I do not understand that. Let us just deal with this affidavit and have a look at that. Have

you read that affidavit, Mr Blake? No?	It is a
lengthy one?

MR BLAKE:  Not quite, Your Honour. Yes, I have read that affidavit, Your Honour.

HER HONOUR:  Yes. Now, do you have any objection to the

Court receiving it?

MR BLAKE:  Your Honour, as to the first affidavit of

29 July -

HER HONOUR: Yes. Sorry - - -?

MR BLAKE:  As I understand it, the applicants wish to hand up an affidavit sworn 29 July.

HER HONOUR: That is right, yes.

MR BLAKE:  I would object to the affidavit being received on

the grounds of relevance, Your Honour. As to the

affjdavit of 19 July, I would make the same
objection. If I could briefly explain the reason

for the objection to both affidavits: the original

application before the Court was an application for

special leave to appeal from a decision of the

New South Wales Court of Appeal which was delivered

on 20 June 1988. The whole of the material in both

affidavits relates to events which occurred after

that date and clearly, on their face, relate to

proceedings after that date in the Federal Court of

Collier(2) 3 29/7/91

Australia and, in my submission, are not relevant to the appeal and could not be relevant by way of

an application to adduce further evidence or,

indeed, on any other basis.

If Your Honour were against me on that basis,

so far as the affidavit of 19 July, I would object

to material in paragraphs 8 and 10 of that

affidavit upon the basis that they obtain material

which is scandalous within the meaning of - - -

HER HONOUR:  19 July: I have not -

MR BLAKE:  You have not seen that one, Your Honour. Well, I

have a photocopy here.

MRS COLLIER:  You have got a copy in the file.

HER HONOUR:  Yes, yes, I know. I have not got it before me.

Thank you, I have got that now. Over and above the

general objection, you object to paragraphs 8 -

MR BLAKE:  Yes, Your Honour, particular allegations in

paragraphs 8 and 10. It is alleged or asserted

that there has been:

tortious actions of the Respondents and their

legal representatives -

in paragraph 8, and in paragraph 10 it is alleged

that a particular medical practitioner -

has not been treating me -

the second-named applicant -

as a direct result of the actions of

the •.... Bank and it's legal representatives.

Your Honour, perhaps I should indicate at this

stage: as to the earlier two affidavits, apart

from the initial paragraphs which state the status

of the particular applicant - perhaps I can be more

precise, Your Honour. Apart from the earlier

affidavit of 13 June 1991, there is no objection

made by the respondent to paragraphs 1 to 3 but as

to the balance of the affidavit objection is taken

on_the grounds of relevance to the affidavit

generally and, Your Honour, as to particular

statements in those remaining affidavits, to those

statements on the basis that they contain

scandalous material falling within Order 39

rule 14.

Your Honour, as to the affidavit of 26 June

1991, the respondent takes no objection to

paragraphs 1 and 2 but as to the balance of the

Collier(2) 4 29/7/91

affidavit, paragraphs 3 to 13, on the grounds that

the material there is irrelevant and as to a

particular passage in paragraph 13 on the grounds

that it is a scandalous matter within Order 39

rule 14.

The grounds of relevance in each case,

Your Honour, is on the basis that it raises

material that has occurred after the decision of

the New South Wales Court of Appeal, 20 June 1988,

and clearly on their face relate to matters which

have occurred in the Federal Court of Australia in

other proceedings.

Your Honour, I think the applicants were about

to hand up to Your Honour an affidavit of 29 July.

HER HONOUR: Well, no, I have to read these affidavits, in

any event. So, perhaps if you would take a -

Mrs Collier, I will have to read all these

affidavits. In truth, I have read in a cursory way

all except that one of today's date. So, I will

have to read that and I will do that now.

MRS COLLIER: Fine. Okay, thank you.

HER HONOUR: Well now, Mrs Collier and Mr Collier, what do

you say is the relevance of these affidavits so far

as they concern proceedings in the Federal Court?

MRS COLLIER:  Your Honour, the application to remove the

stay proceedings is based on section 60(4) of the

Bankruptcy Act which it does state there should be proof of tort being a wrongdoing done to the

bankrupt or his family before, whilst during or

since the Bankruptcy Act - since the declaration of

bankruptcy. I am saying that the original case

which was taken out by the ANZ Bank in the Supreme
Court of New South Wales and of which we further took out action was based on a mortgage document which, in affidavit, dated 26 June 1991 by myself,

there is a deed of release which, as with most

cases of documentation, is filled out and signed at

a solicitor's office ready for exchange or

settlement on final terms. I am saying that the

document was done in all good faith with a

solicitor, left there, and the solicitor, in all

good faith, trying to comply with a request by

Mr Grant - Norton Smith - who is present in Court

today - that the deed of release, a copy of which
was photocopied, to the solicitors, Norton Smith.It

appears that the back page, a signature remained on

that page.

HER HONOUR:	Now, Mrs Collier, how does that bear upon an appeal from the Court of Appeal of New South Wales?
Collier(2)	29/7/91

MRS COLLIER: Well, what I am saying is, Your Honour, that

the actual stay was placed on the case which was

the appeal to this Court from the Supreme Court of

New South Wales. The affidavit of 26 June shows

firstly that, yes, the ANZ Bank and/or their legal

representatives do change documents after they have

been signed.

HER HONOUR:  I am not interested in that. Your application

is to lift a stay.

MRS COLLIER: Yes, Your Honour.

HER HONOUR:  And you say that is on the basis, what,

that -

MRS COLLIER:  I am saying that the actual deed of release

which is the information that is in this affidavit

of 26 June, that that deed of release, the copy

marked "A", of which I have the original, differs

from the deed of release presented on 26 June 1990

to the Federal Court of Australia as being the deed

of release, the original deed of release, and in

fact - - -

HER HONOUR:  How does the deed of release bear on your right

to proceed with an appeal from the Court of Appeal?

MRS COLLIER:	I am saying that in the efforts of the Bank I am showing tort but also I am proving that my
original claim - - -
HER HONOUR:	You do not come here to show tort on the case of the Bank. You come here to get the stay lifted
and that is a stay with respect to the proceedings
in the Court of Appeal.
MRS COLLIER:	In the case before Your Honour, the claim that

I put forward is substantiated by the same actions

that is done on - - -

HER HONOUR:  What is the section of the Bankruptcy Act on

which you rely?

MRS COLLIER: Section 60(4)(1).

MR BLAKE: Section 60(4), I think it is.

HER HONOUR:  I see. So, you have got to say that the

proceedings - the proceedings, you say, are for a
personal injury? The proceedings that were

originally before Master Sharpe?

MRS COLLIER: Yes, Your Honour.

HER HONOUR:  Were a proceeding for what?

Collier(2) 6 29/7/91

MRS COLLIER:  They were originally for possession of the

property.

HER HONOUR:	By whom?
MRS COLLIER:	By the ANZ Bank.
HER HONOUR:	Which action did you commence for a personal

injury or personal wrong?

MRS COLLIER:  We commenced an action in the Supreme Court of

New South Wales against the ANZ Bank originally

under the Contracts Review Act for the fact that

the documentation did not verify with what the

original arrangements we have made.

HER HONOUR: Well, that is not an action for personal injury

or personal wrong.

MRS COLLIER:  No. Your Honour, the original case was on the

basis that the deed was void because of the actions

of the ANZ Bank. The case, I am saying by my

affidavit of 26 June, has been substantiated by the

actions of the ANZ Bank.

HER HONOUR:  But that does not matter. Mrs Collier, the

proceedings were stayed. Do you remember that?

MRS COLLIER: Yes, Your Honour.

HER HONOUR:	Why were they stayed?
MRS COLLIER:	It was stayed when it was brought before

Your Honour - that the Official Receiver had

elected to stop the proceedings and it was

Your Honour - - -

HER HONOUR:  He did not elect to estop them. He never

involved himself in them.

MRS COLLIER: There was an election to dismiss the

proceedings, I believe.

MR BLAKE:  Your Honour, there is evidence of correspondence

between the Bank and the Official Receiver where he

does elect to discontinue the application for

special leave.

HER HONOUR:  I see. Yes, thank you. What is the basis of

this application?

MRS COLLIER:  The basis of this application is, Your Honour,

that I am saying the information presented that

morning when we came before you, there was an

adjournment to go before Justice Einfeld in the

Federal Court for an annulment application. It was

further adjourned and we came back to this Court

Collier(2) 29/7/91

and that is when the stay was put on. I am saying

the information presented to Justice Einfeld was in

deceit. It constitutes under the Criminal Act

actions by - - -

HER HONOUR:  That is a matter to be dealt with in the

Federal Court, it is not a matter for me. There is

no proceeding before me that challenges decisions

in the Federal Court.

MRS COLLIER:  I am not challenging that decision,

Your Honour. I am saying that the information that

has come available has shown that the intentions of

the Bank was to maintain my husband and I in

bankruptcy and to prevent us from being able to
present our case which was just and fight that

case. I am saying that in the Court before

Your Honour, on the morning of 10 November, it was claimed by the Bank by Mr Blake that his client was

losing a lot of money yet his client had already

been granted possession in July 1988, something

which they have not taken, and I am saying that

whilst enforcing us in bankruptcy there have been

actions taken to further cause trouble to our

family and whilst we -are in bankruptcy the argument

would be put up that we could not fight because we

were bankrupt. I am saying that the whole action

was a deliberate action done with the intent of

causing harm and damage to both myself and my

family and I have been to the Full Court of the

Federal Court with the deed of release, for

example, which I was told I could not adduce

evidence. Yet, however, evidence may be issued in

oral form under section 27 - - -

HER HONOUR:  Mrs Collier, let us confine ourselves to this.

You say your ground for having the stay lifted is

section 60(4).

MRS COLLIER: Yes, Your Honour.

HER HONOUR:  You are saying that the proceedings that

ultimately got before the Full Court or the Court

of Appeal was a proceeding for personal injury or

wrong done to you?

MRS COLLIER:  I am saying, Your Honour, that the appeal -

tha~ it was tampered with as far as the information

put to the Full Court of the Federal Court was not

the truth and was a deliberate action against my

family or myself and my family by the ANZ Bank in

the evidence that has now become available.

HER HONOUR:  Mrs Collier, that is beside the point. It is

absolutely beside the point. Whether it is right

or wrong, that is proceedings elsewhere. I am

concerned strictly with your application to stay

Collier(2) 8 29/7/91

the application for special leave to appeal from

the decision of the Full Court. Now, if you want

to rely on section 60(4) you have got to show that
the proceeding which went to the Full Court was a

proceeding of the type referred to in

section 60(4).

MRS COLLIER:  Your Honour, I have not done it in affidavit

form but, yes, I can most definitely prove that.

HER HONOUR:  If you have not done it in affidavit form you have not done it in affidavit form. What was the

proceeding that was in the supreme court?

MRS COLLIER:  The proceeding was an action taken out by the

Australian New Zealand Banking Group originally against my husband and I for possession of our

house which was further a proceeding taken out by

my husband and I against the Australian New Zealand

Banking Group on the mortgage document.

HER HONOUR: There were two proceedings, were there?

MRS COLLIER:  There were, Your Honour. One was held over by

Master Sharpe until the final outcome of the

other was determined. I am saying that the

proceedings that did come before the supreme court

were wrongly heard by Master Sharpe on 28th - - -

HER HONOUR: That does not make them a proceeding for

personal injury or wrong done to the bankrupt,

spouse or member of the bankrupt's family.

MRS COLLIER:  I am saying that after the decision of

Master Sharpe, an af_fidavit of Miles Alan Leon

Grant was presented to Justice Enderby of the supreme court but the affidavit was presented with a copy of an entry in the Commonwealth Gazette,

which I have a copy here, and it was done with the

intention of deception to the Court, that Miles

Alan Leon Grant knew full well that the two Acts,

the Miscellaneous Amendments Act and the

Jurisdiction of Court Cross-Vesting Act had not
both gone through.	The one on 1 September most

definitely had but the one on 1 July had not and it

was as a result of the information of that Act that

Justice Enderby proceeded to hear the case which

we~~ to the Full Court of the Supreme Court. In

that case the quorum of which Justice Kirby was

presiding, His Honour Justice Kirby stated that

"The Acts would both be through by now, so we don't

have to worry" but did not produce any

documentation and did not cite any documentation.

Both Acts - the one due for 1 July 1987, was

finally proclaimed on 1 July 1988 after the

bankruptcy had been taken out and after possession

Collier(2) 9 29/7/91

had been granted to the ANZ Bank. I am saying,

Your Honour, that the case - for whatever reason,

that no documentation was checked out on behalf of

the court's side. The fact is that it was a result

of that case which prompted my husband to lodge a

bankruptcy document which has never been denied

that the document did not have a signature on it

but it was as a result of the action in the court

which was the action spurred on by that of the

Bank's legal representatives. I am saying that

that, in itself, was a wrong in that there was the

time, the effort and the finances needed to fight

that case and to pursue it. I am saying that on

instructions of a particular solicitor, which is in

writing, my husband instituted the appeal in the

wrong manner and I am saying that that solicitor

has since been involved with, first of all, costly
negotiations with the Bank's solicitors for a
settlement of the Bank case and also in other
matters which have been spurred on, I believe, with

the full intention of preventing my husband and I

from, one, gaining legal representation and, two,

being able to afford to either pay bankruptcy bills

or fight -

HER HONOUR:  Now, I understand what you say but that does

not bring you within section 60(4), Mrs Gollier.

MRS COLLIER:	Your Honour, I am saying that when my husband went to the Full Court I was ill which became the
date in question in the Federal Court annulment but
I am saying that it was because of all this, I
suppose you would call it, stress, tension and
trouble that I had these problems. When the
original action was taken out - I will have to step
back two minutes, if I can: when the original case
was taken out by the ANZ Bank ex parte against my husband and I in December 1985 it was for preventing my husband and I from communicating with
the Bank or their officers. That case - we obtained legal representation who. - the firm was
bought out by a firm whose bank was the ANZ Bank so, duly, could not be involved. We then went to a
solicitor and it was this solicitor who instigated
a legal aid application which we were to find out
four months later had not had a submission placed
with it and which therefore rendered us unable to
ob~~in legal aid.

I am not putting the legal aid services apart

but I am saying what I was told and that was that

once you are knocked back on an application you

only get accepted in exceptional circumstances.	I
am saying that the case that I have not produced
medical evidence today simply because the doctor
who was treating me at 10 November and who
had - - -

Collier(2) 10 29/7/91

HER HONOUR: Mrs Collier, medical evidence today is

irrelevant - is simply irrelevant. There is no

appeal before me from anything that happened in the Federal Court. There is none. I am concerned only

with what happened in the Court of Appeal - your

appeal from the Court Appeal, and you say you want

to appeal from there on the basis, presumably, that

I stayed a proceeding which involved an action for

personal injury or wrong done to you, your husband

or a member of your family?

MRS COLLIER: Yes, Your Honour. I am saying that the house

is the -

HER HONOUR: But, Mrs Collier, the words "personal injury or

wrong" refer to physical injury, an injury to the

person or a wrong to the person, the body. They do

not refer to the matters of which you are talking.

MRS COLLIER:  Your Honour, I realize that for somebody who

ordinarily hears some of the things that have gone

on in this case, it does sound strange so I

understand that it is difficult at times to pass

over the information but I will say that in

personal injury, I would take personal injury or

wrong doing as fair enough in affecting a person's

physical well-being or their body. It would also

be something that would affect their emotional

body, their mental state. It would also be

something - - -

HER HONOUR:  Yes, but your action was not about that. You

were not suing the ANZ Bank for emotional stress

and trauma.

MRS COLLIER: But I was taking action against them.

HER HONOUR: For emotional stress and trauma?

MRS COLLIER:  No, Your Honour. I am saying that "well-

being" also indicates where a person lives and

their life and I am saying that the well-being in

this, if defined - - -

HER HONOUR:  There is no well-being in section 60(4). We

are talking about personal injury or wrong.

MRS COLLIER~ Well, I am saying the wrong in that point -

what I am trying to get down to is meaning the

well-being or the point of the wrong being that to

try and force a person to lose all that they own

and to embarrass that person and their family

becomes a physical injury.

HER HONOUR:  Well, that may be so but your action was not

about that.

Collier(2) 11 29/7/91

MRS COLLIER:  My action was about the actual Bank - to the

Bank was about the case of the mortgage document of

which I am saying that if I may be able to produce

documents or cite documents, I am saying that my

action against the Bank in 1985 or '86 - '7 as it

was taken out - is that the mortgage document which was entered into in all good faith was different to

the one arranged in the Bank Manager's office.	I
am saying since that time - - -

HER HONOUR:  That does not seem to me to go to whether or not your action -

MRS COLLIER: Well, I am saying since that time, and the

continuation of the case which was not legally
constituted in the beginning by the information

presented to the Court by the Bank's solicitors

ultimately resulted in 22 June Master Sharpe

granting possession to the ANZ Bank. I am

therefore saying that on the basis of the

information which has become available to me since

10 November 1988 I am able to prove, I believe, to

the Court that the intentions of the legal

representatives of the ANZ Bank was other than that

of abiding by the law-and it was the intentions of

the Bank and its legal representatives and their

actions which resulted in the loss of the case in

the Full Court of the Supreme Court of New South

Wales; that ultimately granted the ANZ Bank

possession of our house which they have not taken,

and ultimately, because of my physical state at the

time, my husband lodging bankruptcy documents.	I
am therefore saying that although the original application came to this Court on the basis of a
Supreme Court of New South Wales - - -

HER HONOUR:	It is the only application in this Court.
MRS COLLIER:	I realize that, Your Honour.

HER HONOUR: It is the only application. That is the only

basis on which this Court can proceed.

MRS COLLIER:	I am saying that by adding the experiences since that time I can substantiate my proof that my
claim to the Court about any action taken would be
fruitless if I was to just stand here and say I
want it for that reason.  I believe that no
application could be accepted without
substantiating evidence to prove - - -
HER HONOUR:	Mrs Collier, I am not, today, and have not at

any stage been concerned with whether you had an

arguable case that the Court of Appeal was wrong.

That is no concern of mine today. My concern today

is whether you are entitled to maintain an action

or maintain an appeal given that you have been

Collier(2) 12 29/7/91

bankrupted. Now, that is the only matter that has

ever been my concern.

MRS COLLIER: Right.

HER HONOUR:  The right - your right - to maintain an action

having regard to your having been bankrupted. Now,

you tell me that you have a right to maintain an

appeal by reason of section 60(4).

MRS COLLIER: Yes, Your Honour.

HER HONOUR:  But you have to understand what those words

mean and that is that the action that went to the

Court of Appeal was an action which arose out of

some injury or wrong to your person.

MRS COLLIER: Yes, Your Honour, and that is what I intended

on trying to prove to Your Honour if I was able to

produce the evidence.

HER HONOUR:  No, no. It is, for example, a car accident: a

car has run into you and broken your leg; somebody

has assaulted you and caused you damage on that

account.

MRS COLLIER:  Would it be of assistance - harassment

organized by a police officer?

HER HONOUR:  But that was not your action. I mean, if you

want to bring an action of that nature somewhere,

well then - I mean, far be it for me to say aye or

nay or to pass judgment on it. You may believe,

rightly or wrongly, that you can bring an action

for those things, and maybe you can, I do not know,

but that is not the question. The question is did

you - was, did you bring an action that answers

that description. Unless you can - - -

MRS COLLIER: Your Honour, I was going to - I applied to

have the stay removed.	I was of the opinion from
the information I have been able to obtain that you
had the stay removed.	Then it put you on the first
step ready to move.

HER HONOUR: Yes, all right.

MRS COLLIER~_ And I was going to ask to get the stay

removed, after which I was going to ask to amend my

special leave to appeal dated 1988.

HER HONOUR: Well, that has nothing to do with me. That has

nothing to do with me and we will not go into it.

MRS COLLIER: Right. But I will say to Your Honour that

actions that did occur in that period of time were

Collier(2) 13 29/7/91

to be brought into this case today and the reason

that they - - -

HER HONOUR:  I do not want to go into that because that it

beside the point.

MRS COLLIER:  I was going to say that they assisted in the

poor financial situation by my husband and I to be

able to fight the case. They insisted in medical

tension being sought for myself for harm and

illness which had resulted but they were not

available - some of the documentation was not
available to me until recently and it was on that

basis that I then started moving because I had the

documentation. Maybe I have worded things a little

bit out of the ordinary and I apologize for that

and I realize I am not a solicitor but I will point

out that where I may have made the bad mistake of

trying to bring all that has happened in the last

12 months to the foreground believing that it was

good proof of what had happened previously, I would

say that, yes, I can prove that I suffered as a

result of the supreme court - - -

HER HONOUR:  That is not the point. One is simply, in these proceedings, not involved in that issue. The issue

is whether you are entitled to maintain an appeal

or whether you are disentitled from maintaining an

appeal by reason of the bankruptcy.

MRS COLLIER:  Your Honour, as to the bankruptcy, this action

from my husband and I was instigated in June of

this year, which, at the same time application was

made by my husband to the Federal Court to stay the

discharge of bankruptcy until this date.	Now, I
have the affidavit for the Court today.	I also

have the information that shows that it was stamped

in the Federal Court on 17 June and it is the

affidavit that Mr Blake objects to that the

conversation between my husband and a member of the

Federal Court staff.	I am saying that I went to
date available at which Mr Blake claimed that there	the Federal Court on 26 June which was the first
was no case before the Federal Court because the
discharge had gone through on 22 June. No
documentation has been shown - and I will point out 22 June was a Saturday - and the Federal Court
stated that they could not hear the case because it
hacf been finished at which the Official Receiver's
legal representative argued that it would interfere
with the administration of the estate if anything
was done.

In the Federal Court Order 3 rule 3 it states

that a litigant cannot be prejudiced by an action

of a court officer. I am asking the Court that

since the action that is only before this Court is

Collier(2) 14 29/7/91

for a removal of the right of the bankruptcy under

section 60(4), if it is only involved with the

original case that was before the Court, that on

that basis I am going to have to - seeing that the

Court has to have the documentation - produce a new

lot of documentation because to me - I am sorry, as

I said I am not a solicitor, but from the information I have picked up was that I had to get

the stay removed before I did any amendments of

applications to the Court.

HER HONOUR:  That is true. You have to get the stay removed

before you can do anything in the action. As I

understand it - I have only a vague recollection,

the effect of my order was that the stay derived

from the Act, not from me, I seem to think.

MRS COLLIER:  Your Honour, the thing that I cannot

understand is, number one:	I am at a disadvantage
here.	I cannot - and I am in the same position as
you.	I do not know the exact extent of what has

happened and what has not happened with the

Official Receiver's Office. I do, however, going

by what was said before the Court by Mr Blake,
believe that Mr Blake· or the ANZ Bank has

surrendered the security of their property to the

Official Receiver's Office. I have no

documentation or nothing and I feel that I should -

if it was not to have to amend documentation, I

feel that I can submit to the Court the necessary

proof of what had happened by the original supreme

court cases if I were to be permitted and I would

duly be able to prove to the Court exactly what

went on and how it went on which would then

necessitate Your Honour, no doubt, finding in my

favour because of what is presented.	I am
sorry - - -

HER HONOUR:  I do not know how I can make this clear to

you - how I can make this any clearer. I am not

concerned about whether or not you can or may or

would or should win your appeal, I am concerned

only with whether you have a right to pursue it and

that depends entirely on section 60 of the

Bankruptcy Act.

MRS COLLIER: On that basis, I will have to - well, I

believe I have a right to pursue it.	I believe it
is up to me now to prove to you that	I do have the
right to pursue it.

HER HONOUR:  Yes, all right. Do you say that your right

depends on something other than section 60?

MRS COLLIER:  I am saying that my right really depends on -

it depends on wrong doing and on physical injury.

I must admit that the wording of the·Bankruptcy Act

Collier(2) 15 29/7/91

is not allowing for some of the strange things that
have gone on but, I will say, yes, under section
60(4) - I believe that point one is for an injury

but if I could just check with my husband on the

other point.

I am sorry, Your Honour, as I said, I am in an

awkward position here with the document.

Section 60(4)(a) says that it is "personal injury

or wrong done to the bankrupt" and I am saying

that, yes, I can produce to the Court information
which could substantiate that claim under

section 60 of the Bankruptcy Act.

HER HONOUR:  I am not interested in whether wrong was done

to you.

MRS COLLIER:	You are interested in injury?
HER HONOUR:	I am not interested in whether an injury was

done to you. I am interested in whether the

proceedings that went before the Court of Appeal

were proceedings for an injury or wrong.

MRS COLLIER:  They were proceedings that had been taken out - originally the action - - -

HER HONOUR: Well, I will tell you what, you can deal with

that at 2.15 because we must adjourn now. But what

you have got to direct yourself to is the nature of the proceedings that were before the supreme court.

MRS COLLIER: Fine. Thank you, Your Honour.

HER HONOUR:  And that is the only question that I can

consider.

MRS COLLIER:  Okay. Thank you, Your Honour.

HER HONOUR:	We will adjourn until 2.15.
AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.19 PM:

HER HONOUR:	Thank you, Mrs Collier.
MRS COLLIER:	Your Honour, section 60(4)(a) of the

Bankruptcy Act reads:

Collier(2) 16 29/7/91

any personal injury or wrong done to the

bankrupt, his spouse or a member of his

family.

In Camilleri, which I have looked at, at 13460.5.5:

The words ins 60(4)(a) cannot be taken in

isolation. The exemption provided by that

sub-section is limited to cases where it had
been considered appropriate to sever the

personal interests of the person subsequently

made bankrupt from his property and to reserve

to him the prosecution of and benefits derived

from such litigation as not being legitimately

entitlements of the creditors. In the present case the so-called wrong complained of was the

very source of the financial problems that led

to the bankruptcy and was not a

wrong .... exempted from the operation of

s 60(2).

Daemar v Industrial Commission of New South

Wales, (1982) 79 ALR 591 was cited which -

Held, per curiam: The claimant's proceedings

were stayed.

(i) The proceedings were civil proceedings,

they were not an action for personal injury or
wrong and they fell within the provisions of

s 60(2) of the Act. There did not appear to

be any reason the clear words of s 60(2)

should be read down nor any other basis upon

which it could be said that the proceedings

should not be considered an action.

Point (ii) was:

The words "wrong done to the bankrupt" in

s 60(4)(a) of the Act could not be taken in

isolation. The exemption provided by that

sub-section was limited to those cases where

it had been considered appropriate to sever

the personal interests of the person

subsequently made bankrupt from his property,

and to reserve to him the prosecution of and

benefits derived from such litigation as not
being legitimately entitlements of the

creditors. In the present case the so-called

"wrong" complained of was the very source of

the financial problems that led to the

bankruptcy and was not a "wrong" exempted from

the operation of s 6)(2) of the Act.

The case cited was:

Cox v Journeaux (No 2), (1935) 52 CLR 713,

applied.

Collier(2) 17 29/7/91

Per Kirby P:  The word "action" was given an

extremely wide definition ins 60(5) of the

Act. The "action" commenced by the claimant

was undoubtedly one whereby he sought relief

affecting his property and was therefore of

the very kind to which s 60(2) was designed to

apply.

The section referred to in the Cox v Journeaux case applied to the bankruptcy rules of 1924 to

1933 and read at section 63, in part:

Every action or proceeding at law or in equity

commenced by any person, against whom a

sequestration order is afterwards made, shall,

upon the sequestration order being made, be

stayed until the official receiver or trustee

makes election to prosecute or discontinue it,

and the official receiver or trustee shall be bound to make such election within four weeks

after notice to that effect is served upon him

by any defendant or party in the action or

proceeding, or otherwise shall be deemed to

have abandoned it.

Provided that any bankrupt may continue,

in his own name and for his own benefit, any

action or proceedings commenced by him

previous to his bankruptcy for any personal

injury or wrong done to himself or to any

member of his family.

That apparently is now what section 60(2) was.

I am saying that going by the explanation for the words "wrong done" or "personal injury", that

there is definitely a section of law that enables
the Court to remove the stay placed on the

bankruptcy in November 1988 and that the only

action before this Court is an appeal on the basis of the appeal before the Full Court of the Supreme

Court of New South Wales of which I am stating that

- although I have not got the case here with me, I

am sorry, I could produce it if required, I am

stating that in the court they found that it was a

case of property - right to our property.

At the beginning of the Jurisdiction of Courts

(Cross-Vesting) Act 1987 it says:

(a) a matter arising under Part IV (other than

section 45D or 45E) of the Trade Practices Act

1974.

It goes over to its various sections and it says: Additional jurisdiction of certain Courts

Collier(2) 18 29/7/91

4(1) Where:

(a) the Federal Court or the Family Court has

whether that jurisdiction was or is conferred jurisdiction with respect to a civil matter,

before or after the commencement of this Act.

It then goes on to appoint power to the supreme

courts of the State and Territories. This Act was

proclaimed on 1 July 1988 and I am saying prior to

its proclamation any cases heard in the Supreme

Court of New South Wales under that Act was

inconsistent with the Australian Constitution at

clause 109 which says:

When a law of a State is inconsistent with a

law of the Commonwealth, the latter shall

prevail, and the former shall, to the extent

of the inconsistency, be invalid.

I am saying that any action taken by the Supreme

Court of New South Wales in the hearing of our case

was invalid and was not legal until 1 July 1988
which was after the findings of the Full Court of

the Court of Appeal and was also after the

beginning of the bankruptcy. The bankruptcy, as

previously has been reported, was as a result - the

actual bankruptcy was as a result of the so-called

financial situation that was imposed by the trouble

and the cost incurred in fighting the case. I am

saying that in the public interest it would be

right to allow the stay to be removed to enable us

to further -

HER HONOUR:  I do not think you understand. It is not a

matter of discretion as to whether the stay is

removed. It is a question whether your action

falls within the terms of section 60(4)(a). I am

not here with, you know, some roving commission to

say what is just or unjust or what is in the public

interest. It is whether your action was for

personal injury or wrong done.

MRS COLLIER:  I feel that the action does fall within the

situation as it has been clearly stated in Daemar v

Industrial Commission of New South Wales and also

in the other cited case of Cox v Journeaux that the

wrong doing or the wrong done to a bankrupt does

not just imply injury. Actually it is given an

extremely wide definition in section 60(5) of the

Act and that that section enables that the action

commenced by the claimant was undoubtedly one

whereby he sought relief affecting his property and
was therefore of the very kind to which

section 60(2) was designed to apply. I feel that -

I realize it is not at the discretion of the Court.

The Court must comply within the rules of the Court

Collier(2) 19 29/7/91

and I feel as the matter was taken out in the

Court's appellate jurisdiction, that the Court does	hold the power to remove the stay and determine
whether the case was just or a wrong doing by
virtue of section 73 of the Constitution which is the appellate jurisdiction of the High Court.

The High Court shall have jurisdiction, with

such exceptions and subject to such

regulations as the Parliament prescribes, to

hear and determine appeals from all judgments,

decrees, orders, and sentences -

(i) Of any Justice or Justices exercising the

original jurisdiction of the High Court:

(ii) Of any other federal court, or court

exercising federal jurisdiction; or of the

Supreme Court of any State, or of any other court of any State from which at the

establishment of the Commonwealth an appeal

lies to the Queen in Council.

I think that the power is there; that the appeal to
the High Court was based on the fact that we
believe that the Act which had not gone through had
only just gone through; the application was made
in early July 1988 which concurs with the timing of

the Act and it was for the personal property and

for also - which would have entailed any injury

that had been incurred at that stage. I therefore

feel that the only case before this Court is the

case that was brought before the Court and stayed

and ask that the Court exercise its correct

jurisdiction in removing that stay to enable us to

then pursue what should be legally right to us and

what has been deliberately, by actions of others,

denied of us.

HER HONOUR:  Thank you. Mr Collier, do you wish to say

anything?

MR COLLIER:	I concur with Mrs Collier's submission.
HER HONOUR:	Thank you.  Mr Blake?
MR BLAKE:	Your Honour, can I just very briefly take you to

the evidence in this matter. Firstly, the

affidavit of Miles Adam Leon Grant of

14 September 1988.

HER HONOUR: Yes, I have that.

MR BLAKE:  Your Honour, could I just briefly take you to

annexure A which is a debtor's petition dated

22 June 1988 of both applicants. Annexures Band

C, Your Honour, and it is the first sentence in

Collier(2) 20 29/7/91

each case that I direct your attention to; a letter

from the Official Receiver advising that the

bankruptcy was accepted and accordingly each of the

applicants became a bankrupt on that date.

Your Honour, can I next ask you to look at a

further affidavit of Mr Grant sworn

27 September 1988. This is a thicker affidavit?

HER HONOUR:	Yes.
MR BLAKE:	Your Honour, in paragraph 2 there is reference to certain documents being annexed. Annexure A is the
statement of claim filed by the applicants in the
Supreme Court of New South Wales. Your Honour, it
is a lengthy document and a little difficult to
understand but if I can just briefly take you to
the first page. Paragraph 1 is an allegation that
the plaintiffs - that is the applicants - were the
registered proprietors of certain property.
Paragraph 2 recites a mortgage. Paragraph 3
alleges that the Bank engaged in misleading or
deceptive conduct that contravened Part V
section 52(1) of the Trade Practices Act.
Paragraph 4 seeks to say that the Bank sought to exclude certain terms in contravention of
section 68 of the Trade Practices Act. Paragraph 5
alleges - well, it would seem to allege or attempt to allege that the mortgage, the contract, was
unjust within the meaning of the Contracts Review the Bank in relation to dealings leading up to the
mortgage and paragraph 7 alleges some discrepancy
between the original and copy mortgage, it would seem.

The relief claimed, Your Honour, relates to

the mortgage: relief under the Contracts Review

Act and the Trade Practices Act and other relief

which is not specified.

Then the particulars in their entirety, which

commence on page 3 of the document, relate entirely

to the circumstances leading to the execution of

the mortgage. They are quite lengthy but there is

no reference, I can assure Your Honour, in any of

those particulars that relate to any physical

in-j_ury to the plaintiff or the applicants.

Your Honour, the progress of the proceedings

that are outlined in the judgments is that

Master Sharpe made an order for summary dismissal

of the applicants' statement of claim. An appeal

from the Master's decision to the court constituted

by a single judge, Mr Justice Enderby, was

dismissed and an appeal from His Honour's judgment

to the Court of Appeal was also dismissed.

Collier(2) 21 29/7/91

Your Honour, if I can then take you to the

affidavit of David Ross Richardson of

2 November 1988. Your Honour, annexure A contains

a letter of 11 November 1988 from my instructing

solicitors to the Official Trustee. Your Honour,

the letter in brief terms outlines the progress of

the proceedings and in the last paragraph calls

upon the Official Trustee to make an election

within section 60(2) and it requests his election

in due course. His response is annexure Band

Your Honour will see the Official Receiver says:

I have elected to discontinue the proceeding

referred to in your letter under reference,

including the Application for Special Leave to

Appeal filed in the High Court of Australia by

Mr & Mrs Collier.

Your Honour, the submission of the respondent:

the action has been abandoned unless it would fall
within section 60(4).

Your Honour, can I just hand up a copy of Cox v Journeaux and a copy of Daemar v Industrial

Commission of New South Wales. Your Honour, the

relevant passage is in the flagged section of Cox v

Journeaux at page 721 at approximately point 6 or 7

on the page and it is the last sentence of a long

paragraph where Mr Justice Dixon said in

considering the predecessor of section 60(4):

The test appears to be whether the damages or

part of them are to be estimated by immediate

reference to pain felt by the bankrupt in

respect of his-mind, body or character and

without reference to his rights of property.

And there is a reference to Wilson v United

Counties Bank Ltd, (1920) AC 102, at page 111 and

128 to 133. Your Honour, the case was an

application that a proceeding be stayed on the

grounds that it was vexatious.

Your Honour, that dicta of His Honour was

applied by the New South Wales Court of Appeal in

the second case that I have handed up.

Daemar v Industrial
Your Honour, the reference is page SSE the President said - and Your Honour will

note that on page 57 Mr Justice Samuels agreed with
the President's conclusions and Mr Justice Clarke

agreed with the reasons expressed by the President.

If I can just take you to page SSE:

The claimant's principal contention was

always that his case fell within the exception

provided bys 60(4) in that his action in this

Collier(2) 22 29/7/91

court was commenced in respect of a "wrong"

done to him and was thus exempted from the

operation of the statutory stay. It is

understandable that a person unversed in the

principles of statutory construction and

unaware of legal authority on the meaning of

s 60(4)(a) of the Act should have taken the

words "wrong done to the bankrupt" in

isolation and concluded as the claimant did

about their meaning.

However, the words cannot be taken in isolation. They must, in accordance with the

ordinary canons of construction, be read in

the context in which they appear. The meaning

of the expression, taken from that context,

has been explained in numerous cases. In

Australia, the classic expression is that

contained in the judgment of Dixon Jin Cox v

Journeaux (No 2), (1935) 52 CLR 713 at 721.

Speaking of the appellant in that case,

Dixon J said:  "He is a bankrupt and there is

no prospect of his satisfying any order for

costs made against him in this, or as I infer,

in previous litigation. Notice was given

under s 63(3) of the Bankruptcy Act 1924 to

the official receiver requiring him to elect

to prosecute or discontinue the action and he

has elected not to prosecute it. The

plaintiff says that he himself is entitled to
prosecute it under the proviso as an action

for personal injury or wrong done to himself.

The test appears to be whether the damages or

part of them are to be estimated by immediate

reference to pa~n felt by the bankrupt in

respect of his mind, body or character and

without reference to his rights of property.

Your Honour, the simple submission of the Bank

is that the action that was before the

Supreme Court of New South Wales is bound up

entirely with the validity of a mortgage.

applicants' action sought in various ways to The

impeach the mortgage and it does not fall within -

cannot be categorized as an action in respect of

any personal injury or wrong done to the bankrupts,

in this case, the applicants. On that basis,

Your Honour, in our submission, the stay originally

was-properly made and there is no justification for

it to be lifted or removed or revoked in any way

and thus the motion should be dismissed.

HER HONOUR:	Thank you. Anything further?
MR COLLIER:	If I could just go to the particulars that were

mentioned in the application before the supreme

court and, also, there was a further·case on

Collier(2) 23 29/7/91

28 August 1987, an application made before the

Federal Court of Australia which was taken out
prior to the proceedings in the supreme court of
28 August before Master Sharpe. In this particular
action it asked for certain relief under sections

of the Trade Practices Act and on page 8 of the

particulars -

HER HONOUR:	Taken out by you and Mrs - - -
MR COLLIER:	Taken out by Mr and Mrs Collier against the ANZ

Banking Group Limited. In the particulars supplied

in an affidavit of that particular application, on

page 8, item 8(d), if I can just read out what one

of the parts of that says:

In the three months prior to

11th December 1985, Mr Kenney, a servant of

the Bank rang me constantly at my place of

work to try to force me to sell up the house,

always with the ultimatum that if this was

done, that the Bank would have no alternative

than to foreclose on their mortgage. The

firstnamed Plaintiff was forced to retire from

his place of work on 11th December 1985

because of extreme anxiety and depression as a

direct result of the Bank's action in using

actions described above.

I think that falls in within the realms of personal
injury or wrong done to a plaintiff in regard

to - - -

HER HONOUR:  But those proceedings in the Federal Court are not before me. I do not know what has happened to

them or anything. They are not before me.

MR COLLIER:	If I can assist Your Honour in that.
HER HONOUR:	And they cannot be before me.

MRS COLLIER:	No, they are not.
MR COLLIER:	No, in this particular application before the Federal Court, because the Bank alleged at the time
that the proceedings in this particular application
were similar to those in the supreme court, the supreme court matter was actually heard in
preference to these proceedings but the statement of claim and the particulars are exactly the same
in the supreme court as what they were in the
Federal Court application.  On the basis of the
original notice of appeal - - -

HER HONOUR: Well, do you say - the document which is said

to be the statement of claim filed 15/5/87 pursuant

Collier(2) 24 29/7/91

to order of Master Sharpe, do you have that

document?

MR COLLIER: Yes, I have that document in front of me,

Your Honour.

HER HONOUR: All right. Now, that is the foundation of the

proceeding?

MR COLLIER: Foundation of the cause of action.

HER HONOUR:	Now, where do you say -
MR COLLIER:	It is on page 8 of the particulars under an item marked d towards the end of the second
sentence, I believe, where it starts:

The firstnamed Plaintiff was forced to retire

from his place of work on 11th December 1985

because of extreme anxiety and depression as a

direct result of the Bank's actions in using

actions described above.

HER HONOUR:	Yes.
MR COLLIER:	I also maintain that in February - - -
HER HONOUR:	What was the relief you sought in these

proceedings?

MR COLLIER: The relief I sought in this particular action

was a relief under Part VI, section 82(1) of the

Trade Practices Act 1974.

HER HONOUR:  Where do I find that?

MR COLLIER: That is on the front page of the application.

You might not have that one. You may not have the

application before the Federal Court.

HER HONOUR: Well, page 2:

The plaintiff claims: 

(1) relief under the Trade Practices Act;

(2) relief under the Contract Review Act;

(3) such other relief as the nature of the

case requires;

and -

(4) costs.

MR COLLIER:  Yes, that is the one. And the applicant claims

by way of interlocutory relief an order for an

Collier(2) 25 29/7/91

injunction under Order 25 of the Federal Court

Rules.

HER HONOUR:  Where do I find that?

MR COLLIER: That is a continuation.

MRS COLLIER:	No, that is the Federal one.
MR COLLIER:	We might be going on a different set of

documents but principally the application in the

supreme court and the Federal Court were

substantially the same - the same sort of relief

was actually claimed except for the fact that the

Federal Court had exclusive jurisdiction over certain parts of the Trade Practices Act which we felt at the time was not under the jurisdiction of the supreme court and we still maintain that at

this present stage.

Also, in February 1988, my wife was admitted

to hospital, the Camden Hospital, a stress and
anxiety problem directly associated, we believe,
with the ANZ Banking Group and I believe there are

notations in the hospital records that can clarify

that position.

HER HONOUR: Yes, but your action does not - the action

before the supreme court does not involve those

things.

MRS COLLIER:  No, not that one.

MR COLLIER: Well, not at that particular stage because when

this application was made it was made on

28 August 1987 and we could not, at that stage,

foretell that Mrs Collier was going to go into
hospital in February 1988. So, the events that

actually occurred from this actually led to her

going into hospital.	The fact is that section don
page 8 did actually occur.

HER HONOUR:  Yes, thank you. Mrs Collier?

MRS COLLIER:  Your Honour, all that I wish to say is that

given the points made by Mr Blake as he has

itemized affidavits that have been put up by his

ins.:tructing solicitor and a solicitor in his

employ, I would like to say that although I did not

have any concrete proof at that stage, I do have

proof that should the Court wish to see it to show

that affidavits are sworn by Mr Miles Grant that

are not necessarily what they are sworn to be and

that, in fact, I have two conflicting affidavits

from Mr Grant stating that a document is, indeed, a

correct document and yet that docume~t is

different. I feel that it may be of ·help to the

Collier(2) 26 29/7/91

Court to explain the situation as to the amount of

credit that can be put on affidavits sworn by this

gentleman.

HER HONOUR:  Yes, well his affidavits are not in issue to

any large extent in this case.

MRS COLLIER: 

No, I was just saying if they were to be used

as a basis of ascertaining the credibility of the
case put to you by Mr Blake today.

HER HONOUR: 

Yes, thank you, but we are relying really on

your affidavits. You do not dispute the document,

do you, that is said to be your statement of claim?

MRS COLLIER:  I will not dispute that on the basis that it

has been going for the last three years. I

maintain that what I have said for the last three

years and what has never been denied by my husband

is that I signed a document that was not witnessed

in my bedroom by Walter William Bare and was not,

in fact, signed by Walter William Bare. That has

never been a dispute before any court. It has been

a case that the evidence put up has only been
statements made by the other side. The statement

of claim - I presume, to be quite honest,

Your Honour, I would not be able to tell, unless I

sit down and look at everything, finally what

actually was the statement of claim three years ago

but I would be able to say that there has never
been a dispute from this side about the signing of

that document. The only dispute has been to the

legality of other actions by people.

HER HONOUR: Yes, thank you, Mr Collier.

MRS COLLIER: Right, thank you.

HER HONOUR: These proceedings seek an order:

That a 'Stay' placed on these proceedings by

Her Honour, Gaudron J. (in Chambers) in Sydney

on 10th November 1988, pursuant to Section

60(2) of the Bankruptcy Act, 1966, be hereby

removed, under Section 60(4)(i) of the

Bankruptcy Act, 1966, as amended.

__ The proceedings which were before me in 1988

resulted not so much in the imposition of a stay as

in a declaration that the proceedings had been

stayed by force of section 60(2) of the Bankruptcy

Act. The precise order embodied in the document

which I now have before me is that:

The summons dated 19th day of September 1988

should stand for mention this day for the

purpose of ascertaining whether the bankruptcy

Collier 27 29/7/91

of the applicants had been annulled and if so,

to determine the status of the said

application for special leave and the said

application standing for mention this day

pursuant to section 60(2) of the Bankruptcy accordingly, this Court doth declare that leave to appeal was and is hereby stayed.

The order reflects the automatic nature of

section 60(2) of the Bankruptcy Act which itself works a stay of any action commenced by a person

who subsequently becomes a bankrupt.

It is not in issue in these proceedings that

the applicants, Mr and Mrs Collier, were made

bankrupt at some stage before the application which

was before me in 1988 was considered.

The automatic stay which is effected by

section 60(2) is subject to an exception that the

section does not apply and:

a bankrupt may continue, in his own name, an

action commenced by him before he became

bankrupt in respect of -

(a) any personal injury or wrong done to the

bankrupt, his spouse or a member of his

family.

That is section 60(4)(a). The basis of the present

application is said to be that the proceedings

which were before the Supreme Court of New South

Wales and which are the subject of an application

for special leave to appeal are, in effect,
proceedings in respect of a personal injury or

wrong done to the bankrupt, his spouse or a member

of his family.

Accordingly, so the argument runs, there is no

stay imposed by section 60(2). In effect, I am

being asked to undo the declaration made in those

earlier proceedings. Whether or not that is an

appropriate course I do not stay to consider. It

is sufficient to note the proceedings as outlined

in the statement of claim which was filed pursuant

to- the order of Master Sharpe and which gives rise

to the proceedings which ultimately are the subject

of an application of special leave to appeal.

Those proceedings, as clearly appears from

paragraphs 1 and 2 of that statement of claim,

concern a mortgage with respect to land at Camden
being mortgage Registered Number V684201 and being

a mortgage in favour of the respondent, the

Australia and New Zealand Banking Group Limited.

Collier 28 29/7/91

The proceedings were based on an allegation,

firstly, that the ANZ Bank had engaged in

misleading or deceptive conduct within the meaning

of section 52(1) of the Trade Practices Act 1974;

secondly, that they had engaged in conduct with

respect to the mortgage in contravention of Part v,

sections 68(l)(a) and 68(l)(b) of the Trade

Practices Act 1974; thirdly, that the Bank had

abused certain provisions of the Contracts Review

Act 1980; fourthly, that the Bank had been negligent in allowing the extension of advances of

money to the applicants and, fifthly, that the Bank

had falsely represented the provisions of the

mortgage document to the plaintiffs and in so doing

obtained the signatures of the plaintiffs upon the

said mortgage document, together with certain

initials alongside certain notations on that
contract, for which the plaintiffs accepted as

being only for the acceptance of these insertions

upon the documents, making these notations a

provision of the mortgage document.

The relief sought by the applicants, the

plaintiffs in the initial proceedings, was under

section 82(1) of the Trade Practices Act and under

the Contract Review Act and, in particular, an

order in relation to the termination of the

mortgage and an order with respect to:-

(i) The making of a disposition of property,

namely the discharge of mortgage and;

(ii)The payment of money by way of

Compensation •.•.. as a result of damages

sustained by the Plaintiffs as a direct result

of actions by the Bank and its Servants and

Agents.

It also included a claim, in paragraph 3, for:

Such other relief as the nature of the case

requires.

In the particulars, which are incorporated in

that statement of claim, it is also asserted that:

The firstnamed Plaintiff -

that being Mr Robert John Collier, and the first-

named applicant in these proceedings -

was forced to retire from his place of work on

11th December 1985 because of extreme anxiety

and depression as a direct result of the

Bank's actions in using actions described

above.

Collier 29 29/7/91

It is now said that, by reason of that particular,

the action which was commenced before Master Sharpe is properly to be described as an action in respect

bankrupt" as those words are used in	of "any personal injury or wrong done to the
section 60(4)(a) of the Bankruptcy Act and, of course, it follows, if that be correct, that the action is not stayed by force of section 60(2).

Notwithstanding the particular "extreme

anxiety and depression" caused to the first-named

applicant and the first-named plaintiff before

Master Sharpe, it is not, in my view, correct to

describe the proceedings which were instituted and which are the subject of the statement of claim to which I have already referred as an action for

personal injury or wrong done to the plaintiff.

The proceedings were, in essence, a proceeding with

respect to the property of the applicants, namely,

their home, and a proceeding directed to ensuring

certain relief with respect to the mortgage over
that home.

I do not think, in any sense, the proceedings can properly be described as an action for personal

injury or wrong done to the bankrupt. Accordingly,

there is no basis on which the declaration

previously made by me can be altered or amended and

the appropriate order is for the application to be

dismissed.

MR BLAKE:	I would ask for costs, Your Honour.
MRS COLLIER:	Your Honour, may I bold to make a point that I

feel that - well, I was just about to say that I
feel that by Your Honour doing so, you have placed

us in a position whereby there is personal injury

and wrong done and I feel that I would like

permission to appeal to the Full Court of the

High Court.

HER HONOUR:  You do not need permission to appeal.

MRS COLLIER: Right, fine. Thank you, Your Honour.

HER HONOUR:  It is your right to - I think you must seek

leave but you do not need my permission.

MRS COLLIER:  Thank you, Your Honour.

HER HONOUR: Certainly, there is no need to entertain any

thought - - -

MRS COLLIER:  I just wanted to make sure it was all on

reporting because I did need to have the

information.

Collier	30	29/7/91
HER HONOUR:	Yes, thank you.	You have asked for costs,

Mr Blake?

MR BLAKE: For costs and certification for counsel,

Your Honour.

HER HONOUR:	What do you say about costs?
MRS COLLIER:	Your Honour, Mr Blake has always put an

argument forward that his client is losing money.

Mr Blake has had possession of my house since

June 1988.

HER HONOUR:  Well, I do not think that is quite right. He

has not taken possession.

MRS COLLIER:  If I may be so bold, Your Honour: maybe I

remember your proceedings in this Court a little

bit better and I do remember you telling Mr Blake

that it was not your role to tell him how the law

had run, so he should advise his client that if

they were granted possession, it was their
responsibility to take it, not to sit back and not

take it. The same type of thing has been explained

to Mr Blake in the Federal Court of Australia and I

think Mr Blake is just trying to abuse the time of

the Court by asking for such things.

HER HONOUR:  Yes. No, there will be an order as to costs

and I will certify for counsel.

MR BLAKE: If Your Honour pleases.

AT 3.03 PM THE MATTER WAS ADJOURNED SINE DIE

Collier 31 29/7/91