Foyster v ANZ Banking Group

[2000] HCATrans 412

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney  No S220 of 2000

B e t w e e n -

LLOYD FOYSTER

Applicant

and

AUSTRALIAN AND NEW ZEALAND BANKING GROUP LIMITED

Respondent

Application for a stay

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 12 SEPTEMBER 2000, AT 9.19 AM

Copyright in the High Court of Australia

MR L.J.W. AITKEN:   May it please the Court, I appear for the applicant on the summons.  (instructed by kings lawyers)

MR A.W. STREET, SC:   May it please the Court, I appear with my learned friend, MS J.E. STUCKEY-CLARKE, for the respondent.  (instructed by Blake Dawson Waldron)

HIS HONOUR:   Yes, Mr Aitken.

MR AITKEN:   Your Honour, this is our application filed, I think, on 9 September in support of which I read an affidavit of Mr Michael Peter Patrick King, sworn 8 September.

MR STREET:   I have an objection just to paragraph 7, your Honour.

HIS HONOUR:   You do not need paragraph 7, do you, Mr Aitken?

MR AITKEN:   Probably not, your Honour, no.

HIS HONOUR:   I will say "not read".

MR AITKEN:   Thank you, your Honour. 

MR STREET:   Your Honour, on the application I do not think my learned friend has any other evidence, I understand from him.  We have an affidavit which is fairly brief.

HIS HONOUR:   That is the affidavit of James Kelly Marshall, is that the one?

MR STREET:   Yes, your Honour.  I seek to read that affidavit. 

HIS HONOUR:   Any objection to that, Mr Aitken?

MR AITKEN:   No, your Honour.

HIS HONOUR:   Yes, thank you, Mr Street.

MR STREET:   Your Honour, there are just two other documents I would seek to tender.  One is a transcript of the interlocutory judgment from Auscript of 31 August.  The other is the notice of appeal that was before the Full Court.

HIS HONOUR:   Have you seen these, Mr Aitken?

MR AITKEN:   I have just seen them, your Honour.  I have no objection to them.

HIS HONOUR:   Yes, Mr Aitken.

MR AITKEN:   Thank you, your Honour.

HIS HONOUR:   You had better take me first to your application.

MR AITKEN:   Yes, your Honour.  I apologise it is not paginated.  It is right at the very back of Mr King's affidavit.

HIS HONOUR:   Yes, I have it.

MR AITKEN:   Your Honour will see that there are two points which we would seek to convince the Court should attract the grant of special leave in the unusual circumstances of this case, and we will probably be applying on the general injustice basis as well.  We are relying here on the difficulty that arises in Sandell v Porter from the fact that at the time of the hearing of any application the debts will normally be quite clearly accounted or accrued whereas the potential assets which will be available to the person who is sought to be sequestrated will often be a matter of dispute or perhaps future prediction.

Now, in this case, evidence was available before the primary judge, Justice Hely, that the debtor had various assets which he hoped would fructify and come to his account and would then be available to pay other debts in a Sandell v Porter sense which were not then payable, but which were likely to fall payable.

HIS HONOUR:   Now, the Full Court dealt with the Sandell v Porter point, did it not?

MR AITKEN:   Yes, but, with respect, not very satisfactorily.

HIS HONOUR:   Paragraph 11.

MR AITKEN:   Yes, but with respect, the Full Court, although saying there that the court - it sets out the test, of course, with respect, quite accurately ‑ but the court does not then pick up the main argument which we had before the Full Federal Court at paragraph 13 which had to do with whether or not, on the limited evidence available, we were entitled to bring into account further sums of money which Mr Foyster swore ‑ and he was not cross-examined about it below ‑ would come to his hands via his shareholding in these companies. 

Now, of course, it is in the nature of Sandell v Porter that that sort of statement will often be on the never-never, in a Micawber‑ish sense, hoping that something will turn up, but in this case, of course, at the time of the hearing we had offered a bank cheque, which the Bank, no doubt, pursuant to the High Court authority, was entitled to reject.  But since that time we have paid full amounts by bank cheque, which are being held on trust, we are told, and we are in fact at present a net creditor of the ANZ Banking Group because they owe us, I think, $20,000-odd.

Now, this throws up the difficulty in Sandell v Porter as to what assets or items one is entitled to take into account.  Your Honour is familiar, of course, with the classic passage which their Honours set out but it does not provide any means of bringing to account, unless the fresh evidence be accepted, cash resources which are able to apply or assets which we were able to find as the debt falls due.  That is exactly what we say happened in this case.  Other assets were sworn to be available and as the assets became available, moneys were made available to pay the Bank.  That is the first point.

With respect to the fresh evidence point, if one looks at the transcript of the hearing before their Honours, one goes to page 16, you can see that we have got a sense of grievance, in a sense, about the way in which the matter was conducted.  It is all very breve manu, no doubt because the court thought Sandell v Porter was four square against us, but your Honour will see at page 16 ‑ ‑ ‑

HIS HONOUR:   Page 16 of?

MR AITKEN:   I am sorry, your Honour, of the transcript before the Full Court - how we were, in a sense, misled.  I do not say that in any dyslogistic sense, but we were led down a blind alley.  We had applied to lead fresh evidence and that then led to a passage at arms about the appeal strictu sensu, Duralla's Case and the like and we relied on the very recent decision of this Court in CDJ v ‑ ‑ ‑

HIS HONOUR:   That seems to me to be the heart of this application, if there is a heart to it. 

MR AITKEN:   Yes, that is a very difficult issue because this is precisely the sort of case, with respect, unusually for a bankruptcy situation ‑ ‑ ‑

HIS HONOUR:   Now, am I right in thinking that the Federal Court still applies the Wollongong Case and McCann ‑ ‑ ‑

MR AITKEN:   It does.  And your Honour will see that in their Honours' judgment.

HIS HONOUR:   Whereabouts do I see that?

MR AITKEN:   I will just pick that up for your Honour.  Your Honour will see, at paragraph 14, in the .....neutral reference, my reference section 27 and then there is reference - Justice Beaumont, the presiding judge, referred to Duralla Pty Ltd v Plant and he said time honoured decision of Sir Reginald Smithers, strictu sensu, no further evidence for you.  Now, of course, no further evidence for us means that in a Sandell v Porter sense we will never be able to convince this Court of the events which have occurred after judgment.  Your Honour will see that ‑ ‑ ‑

HIS HONOUR:   Now, in CDJ v VAJ ‑ ‑ ‑

MR AITKEN:   It is at paragraph 114, your Honour, in the judgments of Justices McHugh, your Honour and Justice Callinan.  It is reported, I think only reported, not authorised reports, in (1998) 157 ALR ‑ ‑ ‑

HIS HONOUR:   You will see footnote 59.

MR AITKEN:   Yes.

HIS HONOUR:   Commonwealth Bank v Quade, which is a decision of this Court, although it relates to discovery delinquencies, did proceed on the footing that Wollongong was applicable.

MR AITKEN:   Yes.

HIS HONOUR:   So you would need to get over Quade.

MR AITKEN:   We have, with respect, some strong dicta in our favour.

HIS HONOUR:   That may be so.  All I ‑ ‑ ‑

MR AITKEN:   This is precisely from your Honour and Justices McHugh and Callinan.  It may well be that we would need to get over Quade.  Quade may have proceeded ‑ I have not turned my mind directly to that point, but it is obvious that the earlier cases took a much narrower view on the sort of House of Lords line of country on this question of when fresh evidence should be capable of being adduced.

HIS HONOUR:   It is then said against you that in any event, even if one did not apply Wollongong and looked at it perhaps more broadly, you would not get the evidence in or it would be futile.

MR AITKEN:   No, no, with respect, that is incorrect on both counts.  First of all, can I take your Honour to page 16 of the transcript.  Your Honour will see that Mr Street was not called on.  I said to Justice Beaumont ‑ ‑ ‑

HIS HONOUR:   Wait a moment.  Where does it say that?

MR AITKEN:   Your Honour will just see, if your Honour will go to line 5 first of all, perhaps line 3.  Does your Honour have that?

Some of the matters deposed to would not be disputed, would they?

HIS HONOUR:   Yes.

MR AITKEN:   I say:

No, maybe not.

BEAUMONT J:   So we could accept them as undisputed facts but subject to relevance.

MR AITKEN:   I suppose so.  Your Honours will find happily set up by my learned instructing solicitor ‑ ‑ ‑

BEAUMONT J:   If they are irrelevant we will obviously ignore them.

MR AITKEN:   Ignore them.  But if your Honours go to a table which is annexure C to Mr King's affidavit, your Honours will see here set out compendiously the way in which the costs orders and the like are moving forward.

BEAUMONT J:   But we can expect Mr Street will tell us what facts are not disputed.

MR AITKEN:   Well he can but this matter has been ‑ ‑ ‑

BEAUMONT J:   Then we come to what is contentious.

Now that, to use a rugby term, is where we were blind-sided because we were never told what facts were not contentious and, presumably, what was not contentious was that the Bank was holding, already, three or two unbanked bank cheques ‑ two unbanked bank cheques.  We were well in front, they owed us money, in a sense, and that is the evidence that should have been put in.

Now, the point that seems to have been taken against us ‑ and maybe I did not argue as well as I should have below ‑ but the point put against us is obviously all a bit late but, of course, it is in the very nature of events, where it is a moving picture in terms of someone's civil status, that you need to bring up the most recent evidence for the court because something might have happened last week where there is some other large debt has arisen or something else has occurred.  So ‑ ‑ 

HIS HONOUR:   There is no doubt that there was an act of bankruptcy committed, is there?

MR AITKEN:   No, there is no doubt there was an act of bankruptcy, that is true.

HIS HONOUR:   What was the act of bankruptcy?

MR AITKEN:   The act of bankruptcy was the failure to pay a debt of some $47,000.  The case was run before Justice Hely on a recalcitrant debtor Sarina basis.  It was put on the basis that we can pay, we just do not want to pay you because we have an ongoing dispute with you before Justice Hidden in the Supreme Court, which is still ongoing.

HIS HONOUR:   What is that about?

MR AITKEN:   It is a very large foreign currency claim against the Bank which we were running, and I think his Honour is reserved there for some 13 months.  We do not want a trustee in.  We offered payment on the day.  Mr Street, of course, with his learned junior said, McIntosh's Case, we do not want the money, thank you.  We said, all right, we will pay you some more.  So the Full Court has stymied us, in a sense ‑ ‑ ‑

HIS HONOUR:   So there was an act of bankruptcy.

MR AITKEN:   There was.  There is no doubt about that.

HIS HONOUR:   The question then is whether a sequestration notice should be made.

MR AITKEN:   Yes, and we said under section 52, in the court's discretion it should not be.  We said we were a recalcitrant debtor.

HIS HONOUR:   What does Sarina say about that?

MR AITKEN:   Sarina says, as I remember, that if you are a recalcitrant debtor and there are other means of actually levying execution and being paid ‑ which is another point, no doubt, his Honour was cognisant of ‑ then you cannot be made bankrupt.  The Bankruptcy Act is not there for collecting debts.

HIS HONOUR:   What did Justice Hely say about that?

MR AITKEN:   Justice Hely said, well, that is all very well, but of course you have a further problem here because you have a Trojan problem.  First of all, he said, I am not going to take into account this money you say is on the never‑never which is going to accrue.  I will take your Honour to that.  I do not know whether your Honour has his Honour's judgment.  Does your Honour have paragraph 35?  This is the core of the appeal and the core of the fresh evidence.  He does not make any direct finding about it but ‑ ‑ ‑

HIS HONOUR:   There was no direct evidence?

MR AITKEN:   There was direct evidence.  There was evidence which was sworn to by Mr Foyster that he was expecting to be able to sell, as in fact he has sold, ex post facto, 1, 2 and 3 per cent of a large mineral holding which he had for, I think, $35,000 per per cent, which is not a small asset, one would assume, so money has come in.  Now, Justice Hely says it is a 44 per cent interest, private company, balance held by family associates, and then he says at the bottom:

Nor can I.....make some estimation of the value of that interest by reference to the fact 5 per cent of the shares which it held in TT realised $148,000.

Well, we say, why not?  Because not only did that realise ‑ ‑ ‑

HIS HONOUR:   Anyhow, his Honour said the onus of establishing solvency rested on you.

MR AITKEN:   That is true, the onus is on us.  But he says:

Still less could I assume that the shareholding could be realised, or borrowed against so as to raise any particular sum of money within a comparatively short time frame.

Well, as a matter of fact after the event, that is just completely wrong.  More money has been obtained.

HIS HONOUR:   But you cannot basically run the bankruptcy law on the basis that "I will fix it up on appeal".

MR AITKEN:   No, with respect, no, your Honour.  That is the difficult conundrum here.  If you are looking at it in a Sandell v Porter sense and you are saying, well, you have some accrued debts here which are bills of costs, here is a bank cheque, and you then have a statement by the debtor saying, "Oh well, don't worry, because by the time the other debts fall due, I've already received $148,000, I will receive some more money.", then we should be able to demonstrate that.

HIS HONOUR:   What would be the relief that would flow?

MR AITKEN:   The relief that would flow would be that we are solvent, the sequestration order would either be set aside or permanently stayed, I suppose.

HIS HONOUR:   It would not be referred back for rehearing, would it?

MR AITKEN:   That is what the Full Court suggested, but I cannot see why, unless of course my friend still refused to take our money.  We are offering to pay them, you see, and Mr Foyster, your Honour will see, has sworn that he has no other creditors apart from someone he owes $1,000 to or - sundry creditors.  In the wash‑up, it is neither here nor there.  Now, this is an odd sort of case because usually, of course, when someone says "I'll find some money for you", there is no hope, no money turns up.  Here we said, "Yes, we'll pay the debts, we can pay them as they fall due", and we have paid them.  My friends, of course, no doubt pursuing their own policy or their own reasons, have refused to accept payment.  They no doubt wish to appoint a trustee for various other possible reasons, although we did not run any case for abuse before Justice Hely, nor could we, I do not think, abuse of process.  No doubt we should have paid the first debt when it was due.  We should have paid out the bankruptcy notice.

HIS HONOUR:   What would be the consequences, in your submission, of translating the reasoning in CDJ v VAJ to the provisions in the Federal Court Act?

MR AITKEN:   Looking at - I think it is probably only dicta ‑ at paragraph 114 of your Honours' joint judgment with Justices McHugh and Callinan, we would say - which should have happened here, of course, although Justice Beaumont ‑ ‑ ‑

HIS HONOUR:   Just forget about side winds and focus on the main point.

MR AITKEN:   I will focus on the main point before I come back to the side wind.

No doubt the Court will readily admit further evidence which is not in dispute and which the court is able to evaluate and take into

account in considering the appeal without the necessity to have the proceedings reheard. 

Our evidence falls squarely within that dicta.

HIS HONOUR:   Yes.

MR AITKEN:   There is no dispute - I hope there is not dispute - that we have tendered two bank cheques, no other costs orders are at present payable, and that Mr Foyster appears to have already received another hundred and something‑odd thousand - perhaps I will have to take some instructions, but he is getting money coming in all the time by selling the asset.  Now that, of course, is precisely what Sandell looks at.  Sandell asks the court to make a proleptic assessment and to say, well, what are you likely to achieve in the next two or three months.  And the answer here is, well, we have achieved it.  Now, we have been shut out, and you will see ‑ I will come back to it, it is just a bit of a thorn in my side ‑ you will see what Justice Beaumont did at page 16.  He said, "Mr Street will tell us what facts are not disputed".  Now, he never invited Mr Street to tell him, and he probably should be invited, because what we would say is that what is not contentious more than gets us home.

HIS HONOUR:   All right.  Now ‑ ‑ ‑

MR AITKEN:   The admitted facts.  Now, all we want is a stay to ventilate both the failure to adduce the evidence and also the broader point of solvency.

HIS HONOUR:   Now ‑ ‑ ‑

MR AITKEN:   And I ‑ ‑ ‑

HIS HONOUR:   It is a good idea to listen, Mr Aitken.  Now, would you be able to be ready, if you do get the stay, to have this matter for the special leave list in December?

MR AITKEN:   Yes, your Honour.  We can have it at any time the Court finds convenient.

HIS HONOUR:   All right.  We will see what Mr Street says.

MR STREET:   Your Honour, we sent up an outline of submissions.  I am not sure whether your Honour received it.

HIS HONOUR:   Yes, I have that.

MR STREET:   I will give your Honour a chance to read that, if your Honour has not had a chance.

HIS HONOUR:   You may be right about ground (a), but it is grounds (b) to (e) that seem to me to be important, that is to say Duralla.

MR STREET:   Yes.  And the proposition we have identified in paragraphs 3 and following is we say this is not an appropriate vehicle.  In essence, Duralla was not decisive of this case.  That is apparent, your Honour, when one goes to the reasons of the Full Court.  If your Honour goes back to the judgment of the Full Court, your Honour will see in paragraph 14, in about line 5, the court says:

For reasons which we gave in the course of the hearing, we declined to receive the evidence.  We did so relying, in part ‑

In other words, it was only in part, it was a factor, there were other grounds for rejecting that evidence, and that is what we have summarised ‑ ‑ ‑

HIS HONOUR:   What are they?

MR STREET:   Your Honour, that was the late provision of that material, contrary to the Rules, in a form that was received - what I might describe as in its sworn form ‑ in the morning of the hearing.  If your Honour goes to paragraph 3 and 4 back in our written submissions, we have summarised what your Honour will see is in the transcript version of the interlocutory judgment.  In other words, there was an independent ground for rejecting this evidence.  Under the Federal Court Rules, further evidence has to be served, I think it is 21 days, before the hearing with a motion to support the same.  That was not done in this case.   What happened was material that was more than ‑ I think his Honour Justice Lehane indicated two months old, was produced.

HIS HONOUR:   What was the explanation for the lateness?

MR STREET:   No explanation was given to the court.  No affidavit was put on, explaining the reasons why this material should be received in this belated form.  So, your Honour, when one looks at the judgment of Justice Beaumont, it is clear, in our respectful submission, he indicated that a separate ground - that scenario alone, that is late service, would have been, in my mind, sufficient reason, as a matter of discretion to refuse the application.  Now, Justice Marshall agreed, Justice Lehane agreed.  So the first proposition we put, your Honour, is that this is not a case where the Duralla proposition is in any event one which is decisive of the application and for that reason is simply not a vehicle in which one could say that this issue should arise and it is one where, in our respectful submission, this Court would be slow, where there was a separate independent ground for rejecting the evidence, to entertain that question in this case.  So we would say the prospects of special leave, where there is an independent ground, is such that one would not entertain it.

HIS HONOUR:   You may be right about that.

MR STREET:   Your Honour, I guess in that regard we appreciate that it is one where, if there had been no independent ground, there is obviously a question that one might raise.  We would say this, though, your Honour, that even if there was a question one might raise, there are significant gaps between what my learned friend wishes to propound and what may be the consequence of the overruling of Duralla.  It is plainly not going to be the position that it is a hearing de novo and that is, in essence, what my learned friend's case seeks to advance; in other words, I want to adduce fresh evidence, subsequent to the order, and on that fresh evidence I want to make out that I am now solvent and, on that basis, I want to establish error.  Now, that is the thrust of his argument.  On no view is a power of rehearing a power of rehearing de novo under that line of country so that we would say, for that further reason, it is not an appropriate case in this one where there could be said to be a prospect of obtaining special leave for that added reason.

Your Honour, beyond that matter, we have addressed, if your Honour was disposed to grant any stay, the question of whether it should be a stay of the sequestration order in its operation or whether it should be a stay of the proceedings under the sequestration order.

HIS HONOUR:   Yes, well there is great debate about this from time to time. 

MR STREET:   Yes, your Honour.  Plainly the Act anticipates that what would be done is a stay of the proceedings.  I am not suggesting there is any power point here, but what one would say is that the scheme of the Act was an intention that the operation of a sequestration order would not be stayed, rather it would be proceedings under the sequestration order.

HIS HONOUR:   Yes.  The stay that was granted here was of the order, was it not?

MR STREET:   Initially Justice Hely only granted a stay of the proceedings under the sequestration order.  That is what Justice Hely provided.  That is what was initially extended by his Honour Justice Einfeld, that is what is recorded in Mr Marshall's affidavit, then Justice Einfeld, on 14 June, I think it was, decided to stay the operation of the sequestration order.  Justice Lehane, when the matter came before him, although I do not think he dealt with the argument, also stayed the operation of the sequestration order.  So what has been stayed since 14 June is the operation of the sequestration order.  Prior to 14 June, though, there was only a stay of the proceedings.

Your Honour, we would say that, for reasons that are apparent in the scheme of the Act, that one would ordinarily only stay the proceedings under the sequestration order.  Your Honour, another factor that we ‑ ‑ ‑

HIS HONOUR:   What is the current state of practice in the Federal Court about that, in the Full Court?  It happens all the time.  It did when I was there.

MR STREET:   Your Honour, we would have said what occurred before Justice Hely is the current and the ordinary practice.  Indeed, I think before Justice Beaumont in the start of the transcript there was some discussion that ordinarily a stay means a stay of proceedings under the sequestration order.  So I think the common approach is that.

HIS HONOUR:   Where is the text of Justice Hely's order?  It is on your affidavit, I think.

MR STREET:   Yes, your Honour, we refer to it in Mr Marshall's affidavit.

HIS HONOUR:   The order that was taken out ‑ ‑ ‑

MR STREET:   I apologise, your Honour.  I appreciate that the order taken out does not deal with that issue.  What he has deposed to is the fact as to what occurred, what Justice Hely did.

HIS HONOUR:   What Justice Einfeld then did was stay the sequestration order until further order of the court.

MR STREET:   Yes.  That was on 14 June, yes.  Prior to that it had been a stay of the proceedings under the sequestration order.

HIS HONOUR:   I think, if I were minded to do anything, I would do both, just to be sure.

MR STREET:   Your Honour, there is one other aspect.  There was another aspect in relation to the stay that we sought to raise - I am not sure whether your Honour would entertain it - but we did identify that in Coleman v Lazy Days Investments one of the conditions upon which such a stay was granted by the court was that, in fact, a statement of affairs was provided so that one had a record of what those affairs were.

HIS HONOUR:   I would leave that to the Full Court, if they granted special leave.

MR STREET:   Your Honour, the last matter we would just seek to address in relation to the question of a stay would be this:  there is a procedure, as your Honour is well familiar with, under section 153A for what I might describe as entertaining this type of application.  Where a bankrupt asserts that they are solvent there is a means whereby one can either approach the court under 153B - that in fact occurred and was ‑ ‑ ‑

HIS HONOUR:   Yes, that is right.

MR STREET:   That happened before Justice Einfeld but the application was dismissed, or one can apply under 153A and under 153A the trustee, if he is satisfied, obviously can annul.  Now, that is another factor to be taken into account, as to whether in fact, on the grounds now advanced, there should be any stay and whether this is a matter that does have sufficient prospect of success because, where there is an alternative avenue such as the procedure under 153A, we would respectfully submit the Court would be very slow to find that the appropriate way in which this question of solvency is to be reventilated, given the nature of the Bankruptcy Act, is in this type of rehearing de novo. 

In that regard, your Honour, we have the policy considerations that were referred to by the Full Court.  Your Honour will recall at the end of the Full Court's judgment they referred to the policy considerations in relation to the dealing properly with bankruptcy petitions and the like and we would have said it would be contrary to that policy, in a case of this kind, for, in essence, a ‑ I will put it as a second bite to the cherry, it is many more than that ‑ for a full hearing de novo to receive evidence of subsequent events to establish an error on that ground.  If the Court pleases.

HIS HONOUR:   Now, three things, Mr Aitken.

MR AITKEN:   Yes, your Honour.

HIS HONOUR:   The first one is it is said, well, why do you not move for an annulment?

MR AITKEN:   Why not move for annulment?  I would retort, why should we have the odium and the public opprobrium of a penal order being made against us when there is no basis for it.  It is one thing to have an order annulled, it is another thing never to have been sequestrated.  That is the first point.  Then, in the context of the parties litigation, which has been conducted over some 10 or 11 years, that is the first point in relation to that.  Secondly, when that route was suggested, the proffered money was rejected.  We applied before Justice Einfeld at one stage and then we were told, "Oh no, we don't want to accept any money from you."  So that route has been tried and failed.  What is the second point?

HIS HONOUR:   Secondly, it is said, well, you would really be seeking an appeal - a hearing de novo.  It is put against you no one suggests that is what it can be.

MR AITKEN:   No, but this is going backwards ‑ ‑ ‑

HIS HONOUR:   Is that not what you want really?

MR AITKEN:   No, no.  What we want - what we wanted was for the Full Court to take into account the uncontentious facts as defined by Justice Beaumont.

HIS HONOUR:   Yes, but with a view to what?

MR AITKEN:   With a view, then, to saying ‑ ‑ ‑

HIS HONOUR:   To demonstrating error on the part of Justice Hely.

MR AITKEN:   Demonstrating error on the basis that making a prediction, which is only a prediction ‑ ‑ ‑

HIS HONOUR:   But it has to be that, does it not?

MR AITKEN:   It a metaphysical question, is it not?

HIS HONOUR:   No.

MR AITKEN:   Yes, it is, with respect.  Justice Hely is predicting something ‑ ‑ ‑

HIS HONOUR:   It does not mean it is bad because it is metaphysical, Mr Aitken.  The world is full of these things.

MR AITKEN:   He is predicting something in the future.  Yes.

HIS HONOUR:   That is what distinguishes us from brutes.

MR AITKEN:   Indeed.  And now he has been proved, with respect to him, wrong about the payment.  He made an informed assessment on the evidence and it was against the weight of the evidence below.  Now, we should have been permitted in a non‑Duralla sense, a CDJ sense, to adduce that evidence which was uncontentious, but then Justice Beaumont, with respect, the presiding judge, took us down a blind alley.  He did not ask Mr Street, as he should have ‑ ‑ ‑

HIS HONOUR:   You seem to bear some deep grievance about that.  I can tell you here and now ‑ ‑ ‑

MR AITKEN:   I do, because ‑ ‑ ‑

HIS HONOUR:   Just listen to me.  I will tell you here and now that will not excite my colleagues on a special leave application.  You might have to vent that somewhere else with a more friendly audience.

MR AITKEN:   It might on a general injustice basis, your Honour.  Your Honour, we simply complain of that point.

HIS HONOUR:   And then it is said, well, construing these provisions as they would be construed if Duralla went and the reasoning in CDJ was brought in, it is still a matter of discretion and there was no explanation for lateness.

MR AITKEN:   No, with respect - well, I have given your Honour ‑ we sought leave to abridge the time.  The explanation for lateness, which was made to the Full Court ‑ ‑ ‑

HIS HONOUR:   Yes, but it was not on affidavit.

MR AITKEN:   I was making it from ‑it does not need to be on affidavit, with respect.  There is no apology for it being late.  It is late because it has to be the most up to date evidence, it has to be the most current evidence.

HIS HONOUR:   I do not accept that, Mr Aitken.

MR AITKEN:   With respect, you are looking at someone's solvency.

HIS HONOUR:   All I can say to you, if I had been sitting there, if it had been my court, there would have been trouble.

MR AITKEN:   The real question is, your Honour, as concerns the special leave, whether or not we fall within paragraph 114 of your Honour's ‑ ‑ ‑

HIS HONOUR:   You had better concentrate on that because it may be important for you on the special leave application, if you get that far.

MR AITKEN:   We will, your Honour.  It is a question whether the Court will ‑ will your Honour say you will readily admit further evidence which is not in dispute and which the court is able to evaluate and take into account. 

Now, that is the evidence which we proffered, it was rejected.  We gave an explanation ‑ ‑ ‑

HIS HONOUR:   The question is why it was late.  The question is what explanation was there for it being late from the client, not from their counsel.  Counsel do not give explanations or that sort.

MR AITKEN:   No, but your Honour, the client cannot be blamed for counsel making ‑ misappraising the position in relation to solvency because the complaint ‑ ‑ ‑

HIS HONOUR:   Anyhow, I will not repeat myself, Mr Aitken.

MR AITKEN:   If the Court please.

HIS HONOUR:   I think in the circumstances I should grant a stay so that the special leave application would be the mechanism for dealing with these submissions that are made to see if there is anything sufficiently substantial to go forward to a grant of leave.  I think I should preserve the position to enable that to be done at a special leave hearing.  This is what I propose:

1.  Order that until the hearing and determination of the special leave application, or earlier further order, there be a stay of the sequestration order made by Justice Hely on 31 March 2000 and of proceedings under that order.

2.  The special leave application be prepared for inclusion in the list of matters for hearing at Sydney in December 2000.

3.  There be liberty to apply on five days written notice.

So if there is any slackening I expect you will be back, Mr Street.

4.  Costs of the summons filed on 8 September 2000 be costs in the special leave application.

MR AITKEN:   If the Court pleases.

MR STREET:   If the Court pleases.

HIS HONOUR:   I will now adjourn.

AT 9.56 AM THE MATTER WAS CONCLUDED