Gordon v Tolcher

[2005] HCATrans 843

[2005] HCATrans 843

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S257 of 2005

B e t w e e n -

CHARLES STUART GORDON

Applicant

and

RAYMOND GEORGE TOLCHER IN HIS CAPACITY AS LIQUIDATOR OF SENAFIELD PTY LTD (IN LIQUIDATION)

First Respondent

SENAFIELD PTY LTD (IN LIQUIDATION)

Second Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 OCTOBER 2005, AT 10.22 AM

Copyright in the High Court of Australia

MR D.A. ALLEN:   If the Court pleases, I appear for the applicant.  (instructed by Brooks & Co)

Your Honours, this matter involves the interaction of section 588FF(3) of the Corporations Act and the application of Part 3 rule 2 of the District Court Rules.  That rule has now been replaced by Uniform Civil Procedure with a similar rule, rule 1.11.  There has been a failure to date on the part of the applicant to serve section 78B notices upon the Attorneys-General. 

McHUGH J:   Well, on Wednesday I directed the Registrar to write to the parties pointing out that arguably this case is within federal jurisdiction, raised, first of all, questions as to whether there was inconsistency with section 109 of the Constitution; secondly, if it was in federal jurisdiction as it certainly appears to be, whether or not section 588FF otherwise provides within the meaning of section 79 of the Judiciary Act and therefore the District Court Rules at the time were inoperative.  I would suspect if you have not served 78B notices, then the matter cannot go on today. 

MR ALLEN:   If the Court pleases.

KIRBY J:   We have a note here that there is a submitting appearance for the respondent.  Is that submitting to the adjournment of the matter, is it?

McHUGH J:   Yes, a letter came in late yesterday saying that they still submit.

MR ALLEN:   I am informed by my instructing solicitor, Mr Lind, that there was contact between the parties yesterday in that they did request from us an adjournment.

McHUGH J:   Yes, two letters were received by the Registry.  The first was that they wanted time to consider an adjournment but a later letter was received saying that they would continue to submit to the appearance.  Now, the Court is interested in this question because it is absolutely necessary that we consider these constitutional issues which appear to arise.  You will probably find that your opponent will be, among others, the Solicitor-General for New South Wales and others, so you have got yourself perhaps into a major constitutional case, Mr Allen.

KIRBY J:   But is nobody teaching about federal jurisdiction any more?  I mean, courts are missing it and barristers are missing it ‑ ‑ ‑

McHUGH J:   I mean, it is extraordinary.  Here is a case heard in the District Court, heard in the Court of Appeal of New South Wales.  Nobody

seemed to have perceived that it was a case within federal jurisdiction and that the Judiciary Act would apply.  I mean, it is not the first time.  This is happening again and again and it is being raised by this Court.

KIRBY J:   We are not holding you personally responsible, Mr Allen.

MR ALLEN:   I am relieved.

McHUGH J:   The matter will be adjourned on the basis that you will be serving 78B notices on the Attorneys-General and the matter can be relisted at the next convenient date.

AT 10.25 AM THE MATTER WAS ADJOURNED