Collier & Anor v Sengos

[1993] HCATrans 262

..

'

.

• JA

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl22 of 1993

B e t w e e n -

ROBERT JOHN COLLIER and MARION

LOUISE COLLIER

Applicants

and

PAUL SHERIDAN SENGOS

Respondent

Application for a stay

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

Collier 31/8/93

AT SYDNEY ON TUESDAY, 31 AUGUST 1993, AT 11.15 A.M.

Copyright in the High Court of Australia

MRS M.L. COLLIER: Your Honour, I am Mrs Collier. This is

my husband.

MR J.F. BURN: If the Court pleases, I appear for the

respondent to oppose the motion. (instructed by

D. Mosca)

HIS HONOUR:	Yes, Mrs Collier.
MRS COLLIER:	Your Honour, I am going to ask permission, if

I may, I supplied an affidavit with my summons - - -

HIS HONOUR:	Yes, I have read the affidavit.
MRS COLLIER:	And I am just asking you, it might help when I am explaining things anyway if I would be permitted
to produce another affidavit.
HIS HONOUR:	First of all, has it been served on the other

side?

MRS COLLIER:  Not yet, Your Honour. I was seeking

HIS HONOUR:  Then you had better show it to the other side

and see if they have got any objections.

MR BURN:  I have no objection, Your Honour.

HIS HONOUR:  Thank you, Mr Burn, no objections. Do you have

a copy?

MRS COLLIER: Yes, I have a copy.

MR BURN: Perhaps, Your Honour, I could just interpose

briefly. I have prepared a chronology in strictly

neutral terms which I could hand up. It might

assist the Court and Mrs Collier.

HIS HONOUR:	I have prepared a chronology myself.
MR BURN:	I am grateful, Your Honour.
HIS HONOUR:	First of all, this affidavit was sworn on

31 August and you move on that affidavit, do you,

Mrs Collier?

MRS COLLIER: Yes, I do, Your Honour, in conjunction with

the other affidavit.

HIS HONOUR:  That is the affidavit filed in support of the special leave application?

MRS COLLIER: Yes, Your Honour.

Collier 31/8/93

HIS HONOUR: That is the affidavit of 27 August. Yes,

Mrs Collier.

MRS COLLIER:  Your Honour, the application which is before

you is from a decision of the Full Court of the

Supreme Court, Mahoney JA presiding, with Sheller

and Cripps JA - - -

HIS HONOUR:  Now, could I just ask you this. There was a

hearing on 18 August in the Court of Appeal and there is a copy of the judgment in the file. I gather that there was a further hearing in the

Court of Appeal on 26 August.

MRS COLLIER: Before one judge only, which was Cripps JA.

There is no judgment been made available.

HIS HONOUR:  I see. Did he give a judgment?

MRS COLLIER:  I do not really know if he has. All it has

got marked on the file is "Dismissed", and that is

it. He was going by the basis - he did say, "I was

on the bench on the 18th and I will go along with

the information." So that is how I am going to

point out to you today the errors that are actually

in the apparent court file.

HIS HONOUR:	Thank you.
MRS COLLIER:	I would like to point out that in the judgment

the true facts of the case were not read by

Mahoney JA, thus taking the decision of his fellow judges, that is Cripps - - -

HIS HONOUR:  Can I just interrupt you to say this:

Mr Justice Mahoney records in his judgment that

there was no evidence before him, that is that there was no affidavit filed in support of the application and in those circumstances he was

driven to extract the facts from the record as it

appeared in the court file. So that creates a

difficulty from your point of view, although you

did file an affidavit before Justice Cripps in the

hearing on 26 August.

MRS COLLIER: Yes, and I filed an affidavit the day before

when it was - I believe Justice Sheller was not on

the bench on the 17th, but there was no appearance

for Mr Sengos and Justice Kirby was the presiding

judge and decreed that it was only fair for him to

be present too.	So he had been duly served with
notice but had not appeared at court.	So therefore

the affidavit - I was in error in my own way in
that I had already supplied an affidavit for the
three judges and was mistaken to believe that that

affidavit would go over to the next day as well.

Collier 31/8/93

HIS HONOUR:  Very well. Anyway, you were making the point

that the Court of Appeal got the facts wrong.

MRS COLLIER: Yes, Your Honour.

HIS HONOUR:  Sorry to interrupt you once more. I will keep

silent as much as I can after this, but do you want

me to read this affidavit of 31 August or are you

going to take me to the appropriate parts. Would

you prefer me to read it to myself?

MRS COLLIER:  Maybe if Your Honour wanted to read it before

I pointed out facts, you would know what I was

talking about probably.

HIS HONOUR:  Yes. You might just take a seat for a moment,

Mrs Collier. That recounts some of the material

that you filed in one of your earlier affidavits.

How does this document, on page 3, headed "In the

Court of Appeal Registry", enter into this matter?

MRS COLLIER: It is an affidavit that I have used as an

annexure in mine because it has clearly got all the

information sort of defined, I suppose you might

say, in a nutshell.

HIS HONOUR:	I thought it might be, but I do not see any formal statement in your affidavit of 31 August
annexing this material. But that is what it is
intended to do, is it?

MRS COLLIER: Yes. I have got:

I crave leave to refer to the AFFIDAVIT of

Marion Louise Collier, filed 20th day of
August 1993 in the Supreme Court of New South

Wales.

Point 2.

HIS HONOUR: That is an inappropriate form in this Court

because when one states that you crave leave to

refer to a document, you are talking about a
document that is already filed in a particular

court, but this is the High Court, that document is

not - - -

MRS COLLIER:	I am sorry.
HIS HONOUR:	That is all right. We will not stand on

formality.	But it is intended to be annexed, yes.
Just let me read that, please, Mrs Collier.	Thank
you, Mrs Collier.

MRS COLLIER:  Your Honour, I am not trying to jump around

madly but if I can point out about some errors in

the reading of the file by the Court of Appeal

Collier COLLIER 31/8/93

judges, commencing back on page 5 of the judgment.

The first point is to the whole lot. It says that the true facts were not read and therefore it tainted the decision of the fellow judges and also

of Justice Cripps on 26 August. There is no

judgment, which I have just explained to the Court,

for 26 August and, thirdly, Mahoney JA, at line 92

of his judgment states that there is grounds for an

appeal.

she was not served with an original summons

for possession;

At line 93 - - -

HIS HONOUR:  He did not say there were grounds for appeal,

he said that is a ground for appeal.

MRS COLLIER: Yes. At line 93 he says - - -

HIS HONOUR:	I do not have any line numbers on my material but I know what you were talking about the last
point you made, but it would help me if you would
refer to the page number.

MRS COLLIER: Page 5, the word "However":

However, it would appear she was present

during the proceedings before Ireland J and

took part in those proceedings. Whether that

constitutes a waiver of any irregularities is

not a matter for the Court to determine at the

present stage.

Now, I am saying that the judgment is in error in that the court or judge has an inherent power to

vary, discharge or suspend any order made by an

earlier judge because it does not proceed upon any supposed error in the initial making of the order.

It predicates the validity of such an order and deals solely with the question as to whether there is established such change of circumstances that it

is just and proper that the further continuance of

the order should be varied, suspended or

discharged. I have not brought it with me, but a

case where this has been applied is in Woods v

Sheriff of Queensland, (1895) 6 Queensland Journal

163.       I believe that the same principle applied on

26 August in that - - -

HIS HONOUR:  I do not think that the Court of Appeal judges

would dispute that. That is a very clearly defined
and well understood principle. But what the

judgment of 18 August seems to say is that you had

not put any material before the court which would

support an application but your chief ground for a

stay appeared to be that the proceedings were -

Collier 31/8/93

that is the proceedings for possession against

you - were defective because you had not been

served in accordance with Part 9 rule 13. In

answer to that the court said, well, even if that is a good point normally, you may have waived it,

and that is a point that can be taken in your

appeal, but they did not see that as sufficient to

grant a stay of proceedings.

MRS COLLIER: In answer to that, if I could say I had a

submission that I put up to the judges but it was

not taken as part - it should have been on

affidavit form, but I am saying that in the actual

fact of that being the case is that in the actual

judgment, if I can be rude and go back to the
judgment - I have got it at line 8, but in yours,

where you have got on the first page "Ordinarily",

it is the line above that, I am saying that he

states:

that there is no evidence before the Court in

support of the -

claim that the original summons for possession was

not served.

HIS HONOUR:  So there was no evidence before the Court.

MRS COLLIER: Yes, on Mrs Collier. Now I am saying that the

judgment had still not been made available in the

Ireland J hearing of 23 July and that my claim and

my husband's is that we were only asked to address

the court in relation to the cross claim which I

had taken out against Mr Sengos. Therefore, I am

saying any waiver is not - a waiver of appearance -

its not in function because the action that I took out, which has got a separate thing to do with the original action, is what I addressed the court in.

HIS HONOUR:	I hear what you say about that, but there are other problems, it seems to me, that you have got
about waiver.  The very fact that you have filed
affidavits seeking a stay itself may well be
regarded as constituting a waiver of proceedings,
Mrs Collier.
MRS COLLIER:	I realize that, but the thing is that the

owners of property - the rules of the court quite

clearly state about service of documents, and just

because I happen to live with my husband, which
probably has gone a little bit out of convention in

today's world - but the fact is because I live with

my husband I am expected to know what is on and

therefore abide by it. I do not see, and I think

it is unlawful, that somebody should be enforced to

abide by the rules when, in actual fact, the rules

are not being enforced from the other side.

Collier 6 31/8/93

HIS HONOUR:	The rule itself is quite clear and it would have been open to you to resist any order on the
ground that you had not been served. Was an
affidavit of service filed in support?

MRS COLLIER:  No, Your Honour. An affidavit was filed from

Domenico Mosca in which he had two affidavits of

service, one was dated 13 May and sworn on 13 May

and the other was sworn and it had 5/93 with no

date and on the delivery of it it did not have any

date entered in it either. I think my husband has

got a copy of it there. I am not sure.

HIS HONOUR:  I noticed in one of your affidavits you say it

was not disputed by the other side that you had not

been served.

MRS COLLIER:  No, not at this stage, no, it has not been.

HIS HONOUR:  There is no answering affidavit so we can proceed on the basis that that is the case. But

the point that is put against you, or would be put
against you, is that although, because of the

failure to company with Part 9 rule 13 of the New

South Wales rules, you could have moved to set

aside any order of possession against you - - -

MRS COLLIER: Well then, in that point, yes. If I can go to

page 2 of the judgment, and without worrying about

lines it is down at the very bottom paragraph,

"Subsequently" is the first word. Now, on 23 June

was a notice of motion that was put before Master

Malpass by my husband and it had been a notice of

motion that had been carried over originally from

May 1993.

HIS HONOUR:  That is the notice of motion that came before the Master on 26 June.

MRS COLLIER: Actually it did not; 26 June was a Saturday.

It came before the Master on 23 June and it says in

it that - of the orders that were pushing forward

that it is claimed, the first point claimed was

proceedings of the plaintiff be stayed under

Part 13 rule 5 of the Supreme Court Act 1970.	It
is also then claimed that the pleadings of the

plaintiff be struck out under Part 15 rule 26 as an

abuse of process of the court. Now, what I am

pointing out to the Court is that, OK, the judges

were in error in their dates, because it is pretty

good to get a judgment on something three days

different to when it is actually about, but I am saying that there have been efforts made to have

this matter pushed forward. The fact that it came

before the Master, it was pushed over to a judge

because of the fact that my husband was contesting

the possession. So it was put over to go before a

Collier 31/8/93

that where it says:  judge and then, similarly, on the paragraph above

It appears from the papers that on 2 June 1993

the matter came before Hodgson J -

Now, it has got down there that the matter was

dismissed. There was an application, which is in

your affidavit of today, and it is asking for an

injunction. Under Part 28 paragraph (21) of the

Supreme Court Procedures it is quite clearly

defined in it that:

An undertaking to the court has the same force as an injunction:

An undertaking was given to the court by the

barrister for Mr Sengos on the occasion and if I

can go down further:

Accordingly counsel should not give an

undertaking to the court on behalf of his

client unless he not only has been clearly

instructed so to do, but is also sure that either he or his instructing solicitor has

made the client understand that an undertaking

has the same force as an injunction and that

breach of an undertaking to the court may mean

attachment or sequestration.

Now, what I am saying on that point is that an

undertaking was given to the court that Mr Sengos

would not enter into any contracts for sale of the

property for a period of six weeks.	My affidavit
of today's date has - - -

HIS HONOUR:  Mrs Collier, there is no evidence before me

concerning what went on before the Master or before

Mr Justice Hodgson but - I know this is a matter of

importance to you because it concerns your property

and, obviously, that is a matter of very

considerable importance, and I want to understand

your case but you have to face up to a number of

matters. The first is that you have to persuade
me, as a minimum, that you have an arguable case

for the grant of special leave. Having perused the

material you have filed, it seems to me that there

is nothing more involved in this case at most than

a question of fact, namely, as to whether or not
you have waived the service of the summons for

possession.

Now, that is not a case on which the High

Court would grant special leave to appeal. If the

High Court would not grant special leave to appeal,

then it would not be proper for this Court or for

myself to make an order staying the proceedings.

Collier 8 31/8/93

MRS COLLIER: Yes.

HIS HONOUR:  Now, they are the two factors that you have to

persuade me that you can overcome.

MRS COLLIER: Right. What I am trying to say - - -

HIS HONOUR:  Could I just interrupt you to say the fact that

there may be errors in the judgments below does

not, itself, give you an automatic right to a grant

of special leave. You have got to show, at least

for the purpose of this application, that you have
at least real prospects of a grant of special leave

to appeal, and that requires you to show either a real miscarriage of justice or that there is some

question of general public importance in this case

which goes beyond the particular parties, that is,

that it has some value for the administration of

justice generally.

MRS COLLIER: Well, basically, what I was going to get back

to and say to the Court that the appeal was divided

into two, technically, because we applied for a

stay of proceedings. Now, the appeal for the

possession and the cross claim that I had placed in

against Mr Sengos, it is only due to come up on

12 October for the books to be filed.

Now, before you, I am appealing to the High

Court for a stay of proceedings and the reason I am doing that is because I believe that there has been

a miscarriage of justice and although we are

supposed to say, "Well, you know, there's been some

mistakes made throughout and we allow for that",

but what I am trying to point out to the Court at
the moment: by pointing the mistakes of the
judgment out, is that if the file has those

particulars in it, then the file is very wrong for

some reason because - I mean, affidavits are there,

not from me, saying, you know, "When Mr Sengos

first went to the property", or anything like that,

they are there in his handwriting or his signed

affidavits. Apparently, somewhere along the line,

the file, in the supreme court, has been completely

mislaid and lost or muddled up.

HIS HONOUR:  But these matters of dates really are not

matters of substance. There may well	be some
ambiguity in terms of what was said.	For example,
take the reference to 3 May.	What

Mr Justice Mahoney said was that Mr Sengos:

took out a summons dated 3 May 1993 seeking

possession of the property.

Now, you interrupted and said:

Collier 9 31/8/93

That is not correct, there were no dogs there

on 3 May.

Well, that is not what the judge was saying. He

said, "the summons was dated". Now, it may be that

he understood that there were dogs on that property

but it does appear to me that he was talking about

the date of the summons, not - - -

MRS COLLIER: Yes. He has got in that paragraph:

The papers suggest that Mr Sengos attempted to

take possession of the property but because of

dogs that were on the property he was not able

to do so peaceably.	He therefore took out a
summons -

as a result of not being able to enter the

property.

HIS HONOUR:  Yes.

MRS COLLIER: Well, I am saying to the High Court that that

is not correct. In actual fact, after his

barrister had given an undertaking to a judge of

the supreme court not to enter into any contracts

for sale - that being 2 June - for a period of six

weeks, Mr Sengos puts up an affidavit stating that on 12 June he went to the property - which is part

of my affidavit of today's date - to get into the

house to have it valued to sell, because he had

Elders Real Estate there, and because he could not

get in he had to get rid of the dogs that were in

the backyard.

HIS HONOUR:  Yes, but that is not necessarily inconsistent with an undertaking not to sell within six weeks.

MRS COLLIER: Well, not to enter into a contract for sale,

and the application was made as Mr Sengos, the

owner of the property.	Then the next point then
comes to the fact that possession had not been
granted at this stage.	Mr Sengos goes out and

signs a document for the RSPCA. Fair enough, it is

not a JP witnessed document or anything like that.

But he has included it in his affidavit.	He says
that:

I am the owner of the above mentioned

animal -

HIS HONOUR: But, Mrs Collier, these matters are really

beside the point. The critical matter, from your point of view, is that, according to the judgment of Justice Mahoney, on 23 July, Mr Justice Ireland

made an order for possession.

Collier 10 31/8/93

MRS COLLIER:  Yes, Your Honour.

HIS HONOUR:  You filed a notice of appeal on 12 August. On

13 August, an application came before

Mr Justice Abadee.	He stood it over, he gave you a
stay of execution until Monday, 16 August.	On 17

August, you filed an application in the Court of
Appeal. It came before the Court of Appeal the

following day, on the 18th. Your application was

refused. It appears from the affidavit that you

have handed me this morning that you filed an

affidavit dated 20 August in the Court of Appeal.

It came before Justice Cripps on 26 August, and

your application was refused.

Now, what you have got to persuade me is, first of all, you obviously know more than many lay

people about law and you would understand the

difference, do you, between a final judgment and

what is called an interlocutory judgment?

MRS COLLIER: Yes, Your Honour.

HIS HONOUR:	Yes. Well, that is another difficulty that you have in this particular case. This is an
interlocutory judgment as opposed to the final
judgment in the situation, which makes your task a
lot more difficult. So, you have to persuade me
that you have real prospects that this Court would
grant you special leave to appeal against an
interlocutory order refusing you a stay of
proceedings.

MRS COLLIER: Well, Your Honour, in doing that - and I can

stay with my own affidavit of today's date -

actually, if I could point one point out from the

judgment still. His Honour, on page 3, at the top

of the page states:

On 14 July 1993 an application apparently

came before Hulme J again claiming an

interlocutory injunction and apparently other

relief and that application was refused.

Well, the matter was, apart from others which they are - in the affidavit is a copy of the notice of

motion - was asking for the matter to be

consolidated into the common law case, the
particulars being exactly the same or close enough

to, and under section 61 of the Supreme Court Act,

it is - - -

HIS HONOUR:	Is that all you were seeking on 14 July?
MRS COLLIER:	Where are we?

Collier 11 31/8/93

HIS HONOUR:  You were seeking that proceedings be

consolidated and you were seeking directions.

MRS COLLIER:  I have just got to get to the right one, that

is all, sorry. Yes, it is in - - -

HIS HONOUR:  I know, I have got your document, yes. I have

seen it.

MRS COLLIER: These proceedings be consolidated with

proceedings numbered -

whatever -

in the Common Law Division of the Court;

Directions be made as to the hearing of the case generally;

The Plaintiff have leave to file this Notice

of Motion instanter;

The Court dispenses with requirements of

service of this Notice of Motion; or

alternatively:

Seek an abridgement of time in which to serve this Notice of Motion upon the Respondent.

HIS HONOUR:  So, do you say you were not seeking any

injunction?

MRS COLLIER:  No, because I have asked for the matter to be

consolidated, basically on grounds that the

paperwork would be there for two different cases

and could get itself lost. So, I am saying that

basically there are a number of mistakes - fair

enough - in that judgment, but the point is that we

have a situation where there is a case of a

property or a house; there is a mortgage; that

before any chances come for either my husband or

myself to lodge a full defence to the fact of the

summons which cannot be lodged until the summons is

actually in force because, to be honest,

Your Honour, you do not give your defence to a

matter prior to the matter being involved, and I

have felt, and so has my husband, that because I

never received a summons - on 13 May the deliverer
did come to our house; he delivered me an affidavit
but I never received a summons. Because the

affidavit of service of this courier is not dated,

thus it is invalid any way - he has not committed
any crimes and has not lied - I am saying that any

defence has not yet been put up to the case.

I put a cross claim in against the matter

which was when I wanted - - -

Collier 12 31/8/93

HIS HONOUR:	Can I just interrupt you to say: according to the judgment of Mr Justice Mahoney, he says that
Master Malpass recorded that it was not disputed that your husband admitted "execution of the
mortgage and default" and it was not disputed that
Mr Sengos was entitled to possession.
MRS COLLIER:	I will let my husband talk to you about that

because I was not there. So, he will have to speak

to you on that matter if that is all right.

HIS HONOUR: Well, I will hear him after you. You finish

your submissions.

MRS COLLIER: Right, okay. Well, what I am trying to say is

I actually came to the court - I think I went

before Master Malpass once and that was when my

husband sent a facsimile to Mr Mosca that he was
not going to be able to come to court and I had to

produce the doctor's certificate because it was the

only way to get it in here and I brought the

doctor's certificate in. I think it was Mr Burn

that produced it to Master Malpass.

Basically, what I am saying is that I took

action against Mr Sengos because a letter was

received saying that because there was a house

fire, he was not going to go ahead with the

possession. He was going to sell the property.

Now, in my affidavit I have a copy of where the

solicitor for Mr Sengos has stated that the matter

for possession had been adjourned to 2 June. Yet,

in transcript before Justice Hodgson the barrister

said that my instructing solicitor was aware they

were adjourned and was perhaps mistaken as to when

they were adjourned to, and nobody turned up in the

common law division.

Similarly, in my affidavit, I have pointed out

that neighbours were told, when we went to the

property - and this is at the beginning of my

affidavit - - -

HIS HONOUR:  I saw that. I have read that, yes.

MR COLLIER: So, I mean, there is a story given to

neighbours that the place was to be rebuilt.

Similarly, there is a letter which I am unable to

have a copy of but could be subpoenaed if required from the Sheriff's Office of New South Wales, with

$160 fee paid to the Sheriff's Office in which Mr

Mosca, solicitor for Mr Sengos, states that the

property was to be auctioned on Saturday.

HIS HONOUR:  Mrs Collier, I think I have been very patient

with you and you have got to come to the real

issues. The real issues are - let me state them to

Collier 13 31/8/93

you again. There is an order for possession being

made against you and your husband that there has

been an application before the Court of Appeal on

two occasions for a stay of proceedings. It has

been refused. They are interlocutory orders made

by the Court of Appeal. You have to perauade me

that this Court would grant you special leave to

appeal.

Now, nothing you have said so far has come

anywhere near persuading me that this Court is

likely to grant you special leave to appeal.

MRS COLLIER: Well, I feel that - - -

HIS HONOUR:  You can always go back to the Court of Appeal

if that court has made errors and you can set them right in terms of the real facts of the case. But

it is another matter altogether to come up to this

Court to seek special leave to appeal.

MRS COLLIER: Right. Basically, what I am trying to say to

the Court is that there has been a complete abuse of any form of legal binding by Mr Sengos and his

representatives and that what has actually happened
has been a case of annoyance, disrespect for rules

and regulations and that because of that my husband

and I are being, I suppose you might say,

victimized to the extent that where the rules and the Act of the Supreme Court are clearly defined, then they are not being abided with. Also,

similarly, the service of documents are

specifically required in a certain way within this

Court and within the Federal Court of Australia.	I
feel that - - -

HIS HONOUR:  But rules can be waived by a party who has the

benefit of them. In the case of Part 9 rule 13 it

is a rule designed for your benefit. Unlike the

old law, service on the husband is no longer service on the wife. However, it is alleged

against you that you have waived the benefit of
that rule.	Now if that is so, that is the end of
the matter.	You have not got a legal feather to

fly with. If you are right, and you have not, well

then, you would probably be in a position where you

would be able to get the order for possession set

aside.

MRS COLLIER:	I am saying that by the fact that I was not asked, and neither was my husband, on 23 July to
address the court in relation to the possession case but, rather, in relation to the cross claim
which I had filed against Mr Sengos, that there is
no waiving of that rule because - - -

Collier 14 31/8/93

HIS HONOUR:  That is a matter that will have to be dealt

with in the courts of New South Wales.	It is not a
matter for special leave in this Court,
Mrs Collier.

MRS COLLIER:  I am saying that because of the fact - that

maybe because I am a lay person and one can take

assertion that by the wording of this text in here

about the need for legal representation, that the

idea was that - I know this is a guilty thing

before I start - assume - which is a word that

probably should not be used - that it is because of

that that the other side has been able to miss a

number of court appearances where I have not. I

feel that because somehow the file is completely

muddled up, I have received an unfair sitting in

the court. I am told that in the supreme court at

the registry, the appeal registry, "Our highest

court is the Court of Appeal".

Now, I have been to the Court of Appeal. The

next court after the Court of Appeal is you.

Because there is still substantially half of the

appeal pending in the supreme court, and a fact

which has never had a defence put to which is the

cross claim, I feel that it would also nullify the
appeal in respect that the property or the house
and the block of land, although substantially

destroyed by fire - of which somebody is

responsible but it is not my husband and I because

the police investigation is now finalized - that

because of the efforts that were done in destroying

the property, what is left of it is, well, to the

degree, sentimentality.

There are things that are retrievable in that

property, minor things, but because the place is

owner built, is the family home and has been done

by every member of the family, there are minor

things, whether it be little trinkets or what, that

have survived the fire - - -

HIS HONOUR:  Yes, but, Mrs Collier, I understand how you

feel about these things but I am here to deal with

a legal question.

MRS COLLIER:	Yes, I know.
HIS HONOUR:	I think I have been very patient with you.
MRS COLLIER:	I will let my husband speak to you but I would

just say before I finish the fact that there is a

great change that would happen if there was not a

stay exerted because of the fact that what would be

changed would be irreplaceable and therefore it
would be a situation that would cause further

litigation by us against Mr Sengos.

Collier	15	31/8/93
HIS HONOUR:	Yes.	Well, I understand what you say, thank

you. Yes, Mr Collier, do you wish to make some

submissions?

MR COLLIER: Just in relation to that last one, Your Honour.

HIS HONOUR:  I take it that you adopt the submissions put

by your wife in support of this application.

MR COLLIER: Yes, I do, Your Honour.

HIS HONOUR:	Yes, thank you.
MR COLLIER:	My main contention would be that by us lodging

a notice of appeal in relation to certain matters

that were before the supreme court in which we

disputed not only the service of the original

summons on my wife but also other matters that were

brought up in the notice of appeal, that for the

supreme court not to grant a stay in the

proceedings, which they have done, whether it has

been based on incorrect facts or whatever, that

does have the effect of nullifying the appeal.	The
appeal will not be put on until some time at the
end of the year or whatever.

By the stay not being placed on the

proceedings, it means that the house, which is the

subject of the possession, will be substantially

destroyed. We have been told, you know, that it is

going to be pulled down or whatever.

HIS HONOUR:  I understand that. Your point is that if the

appeal is successful, then you will have lost the

fruits of your successful appeal because the house

will be gone and so on.

MR COLLIER: Is destroyed, that is right.

HIS HONOUR:  I understand that and, ordinarily, that is a

powerful reason for the granting of a stay in the

supreme court. But to be balanced against that is

your prospects of succeeding in the appeal.

Obviously, if the Court of Appeal or the supreme

court forms a view that you have got no real

prospects of succeeding, then that weighs heavily against you and that appears to be the case here.

Now, as I have pointed out to your wife, this Court
can only deal with matters of legal significance.

It cannot get involved in disputes between citizens

unless there is something special about the case.
The Court can only hear throughout the whole of

Australia something like 90 or 100 matters a year

concerning constitutional cases and all sorts of

cases.

Collier 16 31/8/93

Your wife has put her argument very forcefully but nothing she has said so far has persuaded me

that you would have any prospects of getting a

grant of special leave. In your own interests, I

would ask you both to seriously consider pursuing

this litigation because all it means is that you

are running up costs which ultimately, if you lose,

you have got to pay and you just go from bad to

worse.

MR COLLIER: Yes, I realize that.

HIS HONOUR:  Is there anything further that you wish to put

to me, Mr Collier?

MR COLLIER:  I think that covers it.

MRS COLLIER: Yes, there is actually. I have not - I could

look for it if you need it, but if I can point out

to you that should this property not have been sold

and then for it to be sold it has to be mortgagee

in possession sale and the law on that relates to

the fact of advertising in the Sydney Morning

Herald and in the local papers which has not been

done. Should it not be sold, there is a daily

incurrence of interest rate on that money and

therefore I think there comes public interest and

national importance in that somebody, because he is

not abiding by the laws of this land and not

selling a property up - taking away from the fact

whether or not he is going to advertise as

mortgagee in possession or not, forgetting that for

the moment, coming to the other point of if he is

not going to sell the property, the national

importance then comes that we have a situation

where, okay, be it a lay creditor, a single

creditor, but the point is there and it is a

precedent and it is set for any finance company or

anyone - - -

HIS HONOUR: It is not a precedent, Mrs Collier.

MRS COLLIER: It is a precedent in the respect that if it is

done, right, and he then sues and a daily rate of what he determines is the loan outstanding at any

foreseeable time in the future, then, I feel that

is national importance, because -

HIS HONOUR:  Mrs Collier, there is nothing in this case that

I have seen which can be applied as a legal

precedent to any other case in this country.	It is
a case concerning its own facts.

MRS COLLIER: Here is a good point, I think, that really

should be looked at and that is Part 28.2.1 of the

Supreme Court Rules, and it quite clearly says:

Collier 17 31/8/93

"Property" in this rule includes a document -

and goes on further:

A manufacturing process does not constitute

property.

Right. But it goes down and says:

This Part does not apply where the specific

property has been converted into money.

So, if the property is sold, well then, the appeal

is null and void from that day forward by the

supreme court's own rules. They have already

broken one lot. Are they meant to go and break

another lot?

HIS HONOUR:  Yes. Well, Mrs Collier, I hear what you say

but - - -

MRS COLLIER:  Then if we go to section 109 of the Australian

Constitution and the delivery - the service of summonses - the federal rule always applies over

and above a State.

HIS HONOUR:  When there is inconsistency between

Commonwealth and State laws?

MRS COLLIER: Yes.

HIS HONOUR:  Well now, is there anything further,

Mrs Collier?

MRS COLLIER: That is all at the moment, I think, other

than - I am sorry, I have not produced the

transcript or anything of 23 July.

HIS HONOUR:	I thought your affidavit
MRS COLLIER:	No, the hearing before Justice Ireland,

23 July.

HIS HONOUR: 23 July, yes. Yes, thank you. Yes, I do not

need to hear you, Mr Burn.

This is an application by Mr Robert John

Collier and Mrs Marion Louise Collier for a stay of

execution of an order made by the Supreme Court of

New South Wales pending the hearing of a special

leave application. The applicants own or owned a

property at Camden which was mortgaged to the

respondent, Mr Paul Sheridan Sengos.

On 3 May 1993, Mr Sengos filed a summons for

possession of the property. It appears that an
application to restrain the sale of the property

Collier 18 31/8/93

came before Justice Hodgson on 2 June but he made

no order. Ultimately, on 23 June a motion for a

stay of the possession proceedings came before

Master Malpass. In the hearing before Master

Malpass, according to the judgment of the Court of
Appeal in this matter, Mr Collier admitted

execution of the mortgage and his default under it.

The Master recorded that it was not disputed that

Mr Sengos was entitled to possession. The motion

for a stay of proceedings was refused.

On 14 July an application concerning the dispute or disputes between the parties came before

Mr Justice Hulme. The nature of that application

is itself a matter of dispute but, for present

purposes, it appears to have no relevance. What

does have relevance is that on 23 July, Mr Justice

Ireland made an order in favour of the present

respondent for possession of the relevant property.

On 12 August, the applicants filed a notice of

appeal against the order of possession. On the

following day, an application for a stay of

proceedings came before Mr Justice Abadee. He

extended the stay of execution of the writ of

possession in relation to the property until

Monday, 16 August. The following day, that is,

17 August, an application was made to the Court of

Appeal for a further stay of proceedings.

The matter came before the Court of Appeal on

the following day. According to the leading

judgment, which was given by Mahoney JA, there was

no evidence filed in the Court of Appeal in support

of the application. However, His Honour purported

to record the facts of the matter as they appeared

from the Court file. He noted that Mrs Collier

claimed that she had not been served, with the

summons for possession. However, Mr Justice

Mahoney observed that she was present before Mr

Justice Ireland and took part in the proceedings

Mrs Collier's participation in the proceedings	raised but did not decide the question whether	before that judge. In his judgment, Mahoney JA
constituted a waiver of the lack of service. The
Court of Appeal dismissed the application for a
stay of proceedings on the ground that there was
nothing before it to justify a stay of proceedings. In a very forceful argument, Mrs Collier has
contended that the facts recorded in the judgment
of Mr Justice Mahoney are not accurate. Be that as
it may, what His Honour recorded on that occasion
was not necessary for the purposes of his judgment.
As His Honour said, the failure to file evidence ordinarily would be a sufficient ground to dismiss
the application. Furthermore, Mr Justice Mahoney,

Collier 19 31/8/93

after holding that there was nothing before the

court to justify a stay of proceedings, noted that a further application could be made in proper form.

Then, on 20 August, an affidavit was filed in the Court of Appeal which canvassed at length the

history of the matter. A further application for a

stay came before the Court of Appeal, constituted

by Cripps JA, on 26 August. The affidavit that was

filed alleged wrongful acts on the part of the

respondent and his agents in relation to the

property. It also alleged, in general terms, that

the respondent had embarked on a complete contempt

of the law and that he was abusing the court's

process in that he did not want possession to repay

the outstanding debt but, rather wanted to rent the
property which would have the consequence of

leaving the supposed debt increasing from day to

day.

No judgment has been put before me concerning

the hearing in the Court of Appeal on 26 August but

Mrs Collier informed me that the application was

dismissed.

The chief legal ground which is relied on in

support of the special leave application is that
the proceedings in the New South Wales Supreme

Court are null and void, at least so far as they

affect Mrs Collier, because the original summons

for possession of the property was not served on
her in accordance with Part 9 rule 13 of the

Supreme Court Rules of New South Wales which provides that:

Subject to the rules, where husband and

wife are parties to proceedings, service on
the husband shall not have effect as against

the wife.

The jurisdiction of this Court to grant a stay

of proceedings is beyond doubt.	But this is an
application for special leave to appeal against an

interlocutory order as opposed to a final order.

This Court has always been reluctant to grant

special leave to appeal against interlocutory

orders.

To obtain a stay of proceedings, the

applicants would have to persuade me that they at

least have a real chance of obtaining a grant of

special leave to appeal. That is not to say that

they would have to show that they would probably

succeed; in an appropriate case, it would be

sufficient that a party has an arguable case.

However, nothing that has been put before me

indicates that the applicants have sufficient

Collier 20 31/8/93

prospects of obtaining special leave to appeal to
grant a stay of the proceedings before the Supreme

Court of New South Wales. All that is involved in

the special leave application, so far as I can see,

is whether in exercising its discretion the Court

of Appeal erred in relation to a question of fact
concerning the waiver of service. There is no

question of general public importance involved in

the proceedings. No evidence of any miscarriage of

justice. In those circumstances, the application

for the stay of proceedings is refused.

MR BURN:  I would ask for costs, Your Honour.

HIS HONOUR:  Yes. What do you say about that, Mr and

Mrs Collier?

MRS COLLIER:  I would oppose it, Your Honour, in respect

that I believe that there is reason for coming to
this Court and I believe that - the fact is that I

am only here on one part of the appeal. The other

part of the appeal - it has been divided, quite

equally, apparently for convenience by

Justice Campbell more than anyone else. When we

went before Justice Campbell - he was not the judge

who heard the case. The judge was away and

apparently, as he pointed out, it is usually that

judge's right to order stays. So, he decided,

because we had lodged an appeal, it was right to go

to the appeal court.

HIS HONOUR:  Yes, I appreciate that but -

MRS COLLIER: So, I am afraid it is split into two separate

sections.

HIS HONOUR:  But having brought these proceedings here, why

should you not pay the costs of this application?

MRS COLLIER: Because I feel I can get - approach the Court

in time for special leave to appeal to this Court

and I feel that there are, indeed, a lot of

breaches of the law by the representatives,

including Mr Burn for Mr Sengos, who just does not

turn up when he does not feel like it. I think

that the fact is that maybe, okay, we are lay

people. I agree with that. But I do feel ~hat the

law should be adhered to by all parties.

HIS HONOUR:  Yes. Mr Collier, do you want to say anything

on the question of costs?

MR COLLIER:	No, thank you, Your Honour.
HIS HONOUR:	Mr Burn, why should not these costs be costs in the special leave application?

Collier 21 31/8/93

MR BURN:  Normally, that would be appropriate, Your Honour,

but we have some doubt - and I am rather timid at

even saying this - that that application might ever

be heard, and if it were not - - -

HIS HONOUR:  If that is the case, if it is not pressed, then

you can move to dismiss the application and get

your order for costs then.

MR BURN: Yes, I accept that, Your Honour. Well, I will not

press the matter, Your Honour.

HIS HONOUR:  The matter not being pressed by Mr Burn, I will

make the costs of these proceedings costs in the

special leave application. Do you understand that?

MRS COLLIER: Yes, Your Honour.

HIS HONOUR:  If you succeed in the special leave

application - I will withdraw that order. I will

make these costs the defendant's costs in the

special leave application. So, if they succeed in
the special leave application, they get the costs
of this. If you succeed, they, in effect, do not

get any costs.

Is there anything further?

MR BURN:	No, Your Honour.
HIS HONOUR:	Mr and Mrs Collier?
MR COLLIER:	No, Your Honour.

HIS HONOUR: Adjourn the Court sine die.

AT 12.12 PM THE MATTER WAS ADJOURNED SINE DIE

Collier 22 31/8/93