Goldberg v Morrow

[2006] HCATrans 380

[2006] HCATrans 380

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M102 of 2005

B e t w e e n -

DAVID GOLDBERG

Applicant

and

DAVID MORROW

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 3 AUGUST 2006, AT 9.09 AM

Copyright in the High Court of Australia

KIRBY J:  

Background

This application for special leave to appeal comes from a decision of Crennan J exercising the appellate jurisdiction of the Federal Court of Australia.  Her Honour dismissed the applicant’s appeal from a decision of Federal Magistrate Phipps.  He, in turn, had dismissed the applicant’s application to set aside a bankruptcy notice served in March 2004.  That notice required payment of a judgment debt of $3,468.85.  That debt related to an order for costs made in the Supreme Court of Victoria by Gillard J in July 2003.  That order, in turn, was made when Gillard J dismissed proceedings brought by the applicant against the respondent.

Before Federal Magistrate Phipps there were three grounds of complaint concerning the bankruptcy notice.  First, it was complained that the bankruptcy notice, as served, had not annexed a copy of the order of Gillard J; secondly that the notice was premature because an appeal was on foot against the costs order; and thirdly that a counter-claim or setoff existed which exceeded the amount ordered for costs.

The Federal Magistrate dismissed each of these claims.  As to the first, he found as a fact (on material that was open to him) that the order of Gillard J had been annexed to the bankruptcy notice.  Secondly, he found that, at the time of the issue and service of the bankruptcy notice, no appeal process was on foot in connection with which there had been a stay of execution of the costs order.  Thirdly, he rejected the counter-claim and setoff on the footing that this had been the very subject matter of the proceedings in the Supreme Court of Victoria which failed and which had led to the costs order in the first place.

In the Federal Court, Crennan J found no fault in the reasoning of the Federal Magistrate.  She was unpersuaded by the applicant’s assertion that the Australian Security and Intelligence Organisation (“ASIO”) described by the applicant as “the secret police” had intervened in some way in the proceedings to the detriment of the applicant.  She also rejected the applicant’s argument that the Federal Magistrate had failed to act fairly and to afford the applicant procedural justice.  On the contrary, Crennan J concluded that the Federal Magistrate had been “scrupulous to ensure the [applicant] had a proper opportunity to lead evidence and address him on any matters relevant to the order sought”.  That conclusion was clearly open to her Honour.

Disposition

The applicant’s draft notice of appeal to this Court complains that the order of Crennan J imposed disability and discrimination due to unequal treatment. The applicant refers to, and relies on, the provisions of s 117 of the Constitution and maintains his allegations of ASIO involvement in his case. These assertions do not attract a grant of special leave.

We have carefully considered the applicant’s written case and his arguments for the grant of special leave.  We have also considered the reasons of the courts below.  There is no prospect of success in an appeal to this Court, were special leave granted.  The reasons of Crennan J are manifestly correct.  Special leave should therefore be refused.

Order

Pursuant to r 41.10.5 of the High Court Rules, we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.  I publish that disposition signed by Callinan J and myself.

AT 9.11 AM THE MATTER WAS CONCLUDED